Dresler v. Hard — 25 N.Y. St. Rep. 808

Majority

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John H. Dresler, Pl’ff-Resp’t, v. George M. Hard et al., Def’ts-App’lts,

(New York Superior Court, General Term,

Filed June 28, 1889.)

Headnote

1. Evidence—Competency oe expert testimony.

There being no dispute as to the handwriting, testimony of an expert is inadmissible to show whether a certain receipt is dated in January or July. The date of the receipt is a1 question of fact for the jury in such case.

3. Estoppel—When a new defense—Pleading—Code Crv. Pro., § 500, SURD. 3.

A request to charge the jury that'the plaintiff is estopped from recovering from the defendant, must be refused where the matters claimed to constitute the estoppel have not been pleaded.

Appeal from a judgment entered on the verdict of a jury at a trial term.

Daniel P. Hays, for app’lts; Isaac L. Egbert, for resp’t.

The defendant placed upon the witness stand an expert in handwriting, and exhibited to him a receipt, at the same time exhibiting to him other papers properly in evidence in the cause, and asked him to say,

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after comparing all the papers, but especially their dates, whether the date of the receipt was January 22d or July 22d. It was for the interest of the defendant to show that it was the former. The witness was not called upon to give his opinion of the handwriting. This was not in dispute. As it was the office of the jury to find what the date was, I am of opinion it was not competent for the witness to speak as to that. I do not deny that it would have been competent for the expert to testify as to analysis of the lines that made up the date, and by that to exhibit details which might escape the attention of ordinary observers, and that the jury might consider such testimony. This was not the object of the question, which was properly excluded. The defendant’s counsel asked the court to charge, which the court refused to do, that “if the jury find that Mr. Dresler knew that Mr. Hard was interested in the sale of the Manhattan stock in question, and made no claim against Mr. Hard, filed his claim with the assignee against Blauvelt individually, and allowed Hard to go on and make a settlement with the assignee of Blauvelt, be is estopped from making any claim against Mr. Hard, and cannot recover against him in this action.”

There was no question as to whether the conduct of the plaintiff, as described in the request, might be considered as evidence against the plaintiff of what his relations were with Blauvelt individually or jointly with Hard. The counsel for appellant has not pointed out what testimony there was in the case that required the court to make the charge as requested, but I am of opinion with the court below, that he was bound to refuse the request, because the matters that were supposed to constitute an estoppel had not been pleaded.

These matters did not affect the issues as made by the pleadings as to the original obligation. If the plaintiff were right on those issues, he proved his case, and the law fixed the appellant as liable. A subsequent estoppel would not disprove the existence of the original obligation, but if it afterwards occurred, and had the force claimed for it, it would be an equitable defense or ground for the plaintiff not being permitted to enforce his right. All this would constitute new matter, and should have been pleaded to give the defendant a right to offer’testimony ón the subject. Section 500, Code Civil Pro., subd. 2. Certain questions were admitted by the court against appellants objection. They were to .be allowed, in the discretion of the court, upon cross-examination.

The judgment and order should be affirmed, with costs.

I am of opinion that the appeal book does not show that the defendant excepted to the refusal of the trial judge to charge certain requests. The alleged excep

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tians are presented by the following words: “I also except to the refusal of the court to charge each and every request submitted by me, as requested, that he has declined to charge, and to the refusal of the court to find any requests as requested, which he has charged' in substance.” Then follow fourteen requests to charge. An exception to a refusal to charge should be specific. It is not enough for counsel to say, in general terms, that they except to the refusal of the court to charge each and every request that it has declined to charge. The case should show that the trial judge was requested to charge a certain proposition, that he refused to do so, and that an exception to such refusal was duly taken.

, .The court at general term should not be required to examine the charge of the trial judge in order to determine whether the appellant has or has not a good exception to a refusal to charge as requested. What refusal is excepted ■ to should appear from the exception itself. Briggs v. Waldron, 83 N. Y., 586 ; and see Baylis v. Stimson, 110 N. Y., 621 ; 16 N. Y. State Rep., 178.

The judgment and order are affirmed, with costs.