Brown v. Wakeman — 45 N.Y. St. Rep. 671

Majority

p. 671

Gerald R. Brown et al., App’lts, v. Abram Wakeman, Resp’t.^[1]

(New York Common Pleas, General Term,

Filed April 4, 1892.)

Headnote

t. Appeal—Common pleas.

The court of common pleas has no jurisdiction to review a decision of the city court of New York upon questions of fact.

8. Same—Case.

A verdict in favor of the defendant in an action for rent where the defense was eviction by the landlord, is conclusive upon this court where the case does not purport to contain all the evidence.

3. Same—Questions not raised below.

A point not taken on the trial and as to which no request for instructions was made or exception taken cannot be considered on appeal.

4. Trial—Objections to testimony.

Error cannot be predicated upon the admission of evidence which is material though perhaps incompetent, where the only ground of objection was that it was immaterial.

5. Same.

A general objection to a question calling for declarations of a party to the action as well as of a stranger, which does not discriminate between the admissible and inadmissible evidence, is insufficient.

Action for rent; defense eviction, and counterclaim for damages.

The defendant had a verdict, and the appeal is from the judgment of the general term of the city court, affirming judgment dismissing the complaint, and order denying a new trial.

T. B. Wakeman, for resp’t; McCall & Arnold, for app’lts.

Appellants' main contention is, that the verdict was contrary to the evidence; bat on this appeal we have no-jurisdiction to review the decision of the court below upon questions of fact. Arnstein v. Haulenbeek, 16 Daly, 382 ; 34 St. Rep., 297 .

And, as the case does not purport to contain all the evidence, we are bound to assume that sufficient proof was adduced to support the verdict. Arnstein v. Haulenbeek, supra; Howland v. Howland, 20 Hun, 472 ; Davis S. M. Co. v. Best, 50 id., 76, 79; 23 St. Rep., 876 ; Cheney v. R. R. Co., 16 Hun, 415 , 419 ; Murphy v. Board, 53 id., 171; 25 St. Rep., 154 ; Spence v. Chambers, 39 Hun, 193 , 195.

These peremptory rules of appeal leave for consideration only such questions of law as are apparent on the record by appropriate exceptions.

The point that the disturbance of defendant’s possession was not by the plaintiff, but by the department of buildings, is not available to appellants, for the reason that whether the defendant was so molested in his occupancy is concluded by the verdict on conflicting evidence, and by the presumption that the actual proof was adequate to sustain a finding that defendant’s injury was the consequence of plaintiff’s trespass.

Clearly and explicitly the court charged the jury that the defendant “ cannot maintain an eviction for the time he may claim he has been denied the use and occupation of the premises if he retains them and uses them;’’ and again that “ a tenant cannot remain in possession, and because circumstances exist which would authorize him to leave, treat the matter as though in reality he had vacated.” Still, appellants impute error to the refusal of" the court to direct a verdict in their favor “ upon the ground that a tenant cannot remain in possession and then claim an eviction ;” and in support of their contention they allege that the evidence of defendant’s continued possession was entirely without contradiction. We do not so read the evidence as returned; and since the record is not certified to contain all the evidence, the-presumption prevails that the verdict was justified by proof produced but not reported.

To the proposition that the jury erred in “refusing to allow the plaintiff the rent for the months of February, March and April, notwithstanding that the repairs were completed before February 1st,” it is an all-sufficient answer, that the point was not taken on the trial, and that no request for instructions or exception presents the question for review.

The point that the judge erred in allowing “hearsay-testimany ” as to the ownership of the premises is untenable for two reasons: First, the ground of the objection was that the testimony was immaterial, whereas it was material though perhaps incompetent ; and secondly, the question challenged called for declarations-of a party to the action as well of a stranger; while the objection was general and without discrimination between the admissible and the inadmissible evidence.

The fact, if so it be, that the general term of the court below

p. 673

erred “ in assuming that the repairs were made by the plaintiffs and not by the department of buildings,” is of no consequence; since a wrong reason for a right decision is ineffectual for its reversal. The trial court, at all events, did not commit a like error.

And so of the alleged error by the general term in “ holding that the repairs were not completed until May, 1890.”

Appellants’ other exceptions are necessarily involved in the determination of those already discussed.

Upon a careful examination of the case we find that the learned trial judge submitted the issues to the jury in a charge of unusual clearness and correctness; and our conclusion is, that no available error was committed to the prejudice of the appellants.

Judgment and order affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.