Bullock v. Oppman — 15 N.Y. St. Rep. 990

Majority

p. 990

Thomas O. Bullock et al., App’lts, v. A. W. Oppman et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 18, 1888.)

Headnote

Practice—Objection to admission of evidence—How taken to make EXCEPTION AVAILABLE ON APPEAL.

Objection to the admission of evidence must specify the ground of the objection (so as to bring the attention of the court directly to the point), in order to render the objection available on appeal. The fact that (he objection could not have been obviated if it had been put upon the proper ground, does not make the objection sufficient.

Appeal from judgment entered upon the verdict of a jury at circuit, and from order denying motion for a new trial.

William A. Abbott, for app’lts; William H. Townley, for respt’s.

—Three causes of action are set out in the complaint. The first is for $18.70, being the purchase price of twelve bags of rice alleged to have been sold and delivered by the plaintiffs to the defendants; the second is for $139.56, being a balance claimed to be due on the sale of a car load of broken rice, and the third is for $991.87, being the entire value of another car load of rice, sold and delivered, as the plaintiffs claim, under an agreement whereby the defendants bought of them five car loads of rice, but accepted only two and refused to take or pay for the third car load.

As to the first cause of action, the defense was that the twelve bags of rice in question were used by the defendants (who are brewers of Cleveland, Ohio) as samples, and the grain having proved unsuitable for brewing purposes, the plaintiffs agreed to make no charge for the comparatively small quantity contained in these twelve bags. As oto the second cause of action, the defendants pleaded payment.

p. 991

As to the third cause of action, they interposed a general denial. Upon conflicting testimony the jury determined each issue in favor of the defendants, and we find no reason to interfere with the verdict, unless an error was committed available to the appellants in admitting in evidence, against their objection, a portion of a certain letter written to them by their agent in Cleveland, one Timothy Ingraham, through whom the alleged contract between the parties was made.

That the defendants agreed to take one car load of rice, and actually did take two, is not disputed. According to the deposition of Mr. Ingraham, taken before a commissioner in Ohio, the agreement went further and bound them to accept and pay for five loads, to be sent to Cleveland five weeks apart. In order to contradict his testimony to this effect, the defendants offered in evidence a letter written by him to the plaintiffs, his principals, in which he said: “ I told you repeatedly (and tell you again) that the rice was to be shipped as they wanted it, and I would notify you in all cases when to ship.” The plaintiffs objected, but the court admitted that part of the letter which has been quoted, and the plaintiffs duly excepted. They now insist that. it was error to receive this evidence in contradiction of Mr. Ingraham’s testimony, inasmuch as he was not questioned with reference to the letter, when cross-examined upon the interrogatories annexed to the commission, nor was the letter then produced so that he could inspect it. Pendleton v. Empire Stone Dressing Co. 19 N. Y., 13 , 18; Gaffney v. People, 50 N. Y., 416 , 423.

But the objection taken to the admission of the letter was not such as to render their exception available to the appellants. They did not object on the ground that the attention of the witness Ingraham had not been called to the letter, or that it had not been shown him; or, in more general terms, that a proper foundation had not been laid for its admission, or even that the evidence was incompetent. The objection actually made is stated in the record as follows: “ Objected to on the ground that it is a letter after the arrival of the car. It is a declaration of Mr. In-graham, the agent, who swears to a certain contract. It is offered to contradict him as to what the contract was between these parties.” Here there was no reason specified or suggested which should have led the court to exclude the letter. Nor was there any intimation that the basis of the objection was the omission to produce the letter for Mr. Ingraham’s inspection, and cross-examine him with reference thereto before the commissioner. It is true that the objection probably could not have been obviated even if it had been put upon this ground, as Mr. Ingraham presumably was out of the jurisdiction; but it does not necessarily follow that the objection is to be deemed sufficient.

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Says Andrews, Ch. J., in the case of the People v. Beach ( 87 N. Y., 508 , 512): “ There are often technical objections to questions which, upon being suggested, will at once be acquiesced in, or induce a change in the form of the question or mode of proof by which the objection is obviated. In such cases common fairness and the due administration of justice requires that the party should, by specifying the ground of the objection, bring the attention of the court directly to the point, and if he omits to do so he is justly deprived of the benefit of his objections.” The facts in the case at bar require the application of this statutory rule, and the exception to the admission of the letter in question must be deemed ineffectual.

The judgment appealed from should be affirmed, with costs. We find no order denying a motion for a new trial in the record before us, although there is a statement to the effect that such a motion was made and denied. Assuming the existence of an order denying said motion, it should also be affirmed.

Van Brunt, P. J., and Macomber, J., concur.