p. 292PHOEBUS v. WEBSTER et al.(Supreme Court, Appellate Division, Second Department.Headnote
1. Harmless Error.Where evidence erroneously received was so remote in its application to the case that it could hardly have influenced the jury, and no reference was made to it in the charge, the error was not prejudicial.
Appeal from municipal court of New York.
Action by John A. Phoebus against David Webster, impleaded with others. Judgment for plaintiff, and defendant Webster appeals. Affirmed.
Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and HIRSCHBERG, JJ.Charles N. Morgan (George E. Morgan, on the brief), for appellant.
Paul Armitage, for respondent.
The main purpose of this suit is to enforce the liability of the defendant David Webster as a general partner in the firm of Seymour, Johnson & Co. The evidence offered for that purpose was to a great extent substantially the same as that which was deemed by this court sufficient in the case of Chambers v. Webster, 69 App. Div. 546 , 75 N. Y. Supp. 31 . The appellant argues that there is additional proof in this record, which should change our conclusion; but it seems to us to amount to nothing more than an amplification of the testimony in the former case, not calling for any different result. Certainly, we cannot condemn the verdict as being against the weight of evidence, or without sufficient evidence
p. 293to support it. If any error was committed in receiving testimony tending to show that Ammon & Goslin participated in the firm profits, we do not see how it could have had any harmful effect upon the appellant. No reference was made to this testimony in the charge, and its application to the issues was so remote in any view that we think it extremely improbable that it had any influence upon the jury. The judgment should be affirmed.
Judgment of municipal court affirmed, with costs.