Phillips v. Richardson — 35 N.Y. St. Rep. 377

Majority

p. 377

Edwin P. Phillips, Resp’t, v. Charles T. Richardson, App’lt.

(New York Common Pleas, General Term,

Filed January 5, 1891.)

Headnote

^Evidence—Assignment—Harmless error.

In an action brought by the assignee of a claim, the plaintiff was allowed to file the written assignment after the close of the trial. Held, error; but that defendant was not prejudiced thereby, as plaintiff had testified to its contents without objection, and defendant had offered no testimony in contradiction thereof.

Appeal from a j udgment rendered in the district court of the •city of New York for the first judicial district.

Howard Ellis, for resp’t; Gilbert D. Lamb, for app’lt.

The action was to recover the rent of certain premises in the state of New Jersey and for damages for injuries to the premises, etc. The plaintiff was the assignee of the claim, and upon the trial was allowed to file the written assignment. after its close, to "which the defendant objected and excepted.

The trial justice undoubtedly erred in giving this permission, as it deprived the defendant of any opportunity to inspect the assignment or give any evidence in contradiction thereof, and this error would necessarily require a reversal of the judgment but forth e fact that upon the trial the plaintiff was allowed to give parol testimony of the contents of the assignment without objection on the part of the defendant, and he offered no testimony in contradiction thereof. An inspection of the assignment shows that its contents were correctly stated in the parol evidence, and we therefore do not see how the defendant could have been in any way prejudiced by the error.

From the evidence we think that the plaintiff was entitled to judgment, and that the amount thereof was fair and just. It should, therefore, be affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.