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Sampson v. Mayer

90 N.Y.S. 379 Court N.Y. App. Term Decision date 1904-11-10 English

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p. 379
SAMPSON v. MAYER et al.
(Supreme Court, Appellate Term.
November 10, 1904.)

Headnote

1. Appeal—Objections to Evidence.
The failure of a trial court to require preliminary proof of the genuineness of the record of a judgment admitted in evidence will not avail on appeal, where the only objection to its admission on the trial was its competency.
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by John S. Sampson against Clara Mayer and others on an obligation in writing whereby defendants bound themselves jointly and severally to save plaintiff harmless from the claims of creditors of a firm of which hé had been From a judgment for plaintiff, defendants appeal.
Affirmed.
Argued before FREEDMAN, P. J., and BISCHOFF and FITZGERALD, JJ.
Nathan D. Stern, for appellants.
H. H. Glass, for respondent.

The sole burden of this appeal is that the court

below erred in allowing in evidence the record of a judgment recovered in the Municipal Court of the city of New York, borough of Brooklyn, Second District, from which it appeared that the debt which the plaintiff paid, and for which he sought to be reimbursed in" this action, was a valid and subsisting demand against the firm from whose debts the defendants had agreed to save the plaintiff harmless. The particular error is urged to be the trial court’s omission to require the plaintiff to furnish the preliminary proof of the genuineness of the record. The objection to its admission, however, which was to its competency generally, did not call the trial court’s attention to the objection sought to be availed of upon this appeal. Had it been specifically made, the preliminary proof

p. 380
might have been adduced, and the objection thus overcome. It cannot, therefore, avail for reversal. Tooley v. Bacon, 70 N. Y. 34 ; Mead v. Shea, 92 N. Y. 122 ; Wallace v. Vacuum Oil Co., 128 N. Y. 579 , 27 N. E. 956 .

Judgment affirmed, with costs.

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