McLaughlin v. O'Toole — 48 N.Y. St. Rep. 682

Majority

p. 682

James McLaughlin, Resp’t, v. James O'Toole, App’lt.

(New York Common Pleas, General Term,

Filed November 7, 1892.)

Headnote

1. Appeal—Evidence.

Where no objection is made to the reception of evidence upon the trial, its competency cannot be complained of on appeal.

2. Evidence—Credibility oe party.

The testimony of a defendant, though not otherwise impeached, is subject to discredit as that of a party in interest.

Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the eleventh judicial district. Action to recover for building material, etc., sold and delivered, the defense being a denial and a-counterclaim for work, labor and services, and materials furnished.

James A. O' Gorman, for resp’t; Lawrence P. Mingey, for app’lt.

The action having been tried before the justice below without a jury, his determination of the facts, except in the case of palpable injustice, is conclusive upon appeal. Weiss v. Strauss, 39 St. Rep., 78 .

An examination of the testimony adduced, on the trial discloses ample evidence to support plaintiff’s recovery, and we are unable to say that the justice erred in accepting the facts sworn to by plaintiff and his witnesses as against the denial of them for the defense. Some of the evidence introduced for plaintiff ought unquestionably to have been excluded under proper objection, but as none was made defendant should not now be heard to complain of its incompetency. Cohn v. Goldman, 76 N. Y., 284 ; Mead v. Shea, 92 id., 122; Coates v. First Nat'l Bk. of Emporia, 91 id., 20, 31.

p. 683

Assuming with the defense that the chimney breasts which constitute the subject matter of the counterclaim were not part of the party wall referred to in the agreement in evidence, plaintiff’s liability to pay one-half the expense incurred therefor rested entirely upon his alleged promise to pay. Such a promise was testified to by the defendant, and, though it may not have been directly denied by the plaintiff, a sufficient conflict of evidence arose in respect to it by plaintiff’s version of the interview at which defendant alleged it was made, and which version differed essentially from the one appearing from defendant’s testimony, to make the determination below conclusive as a controverted question of fact

Again, defendants testimony wes subject to discredit, though not otherwise impeached, as that of a party in interest, Elwood v. Western U. Tel. Co., 45 N. Y., 549 ; Gildersleeve v. London, 73 id., 609 ; Honegger v. Wettstein, 94 id., 252; Kavanagh v. Wilson, 70 id., 177; The Canajoharie Nat. Bk. v. Diefendorf 123 id., 191, 200; 33 St. Rep., 389 , and as the trial justice had the advantage of personal observation of the witness while under examination, by which he may have been properly influenced in measuring the degree of credibility which should be attributed to the testimony, Baird v. Mayor, etc., 96 N. Y., 567 , 576, defendant cannot be said to have sustained the burden of showing that the rejection of the counterclaim was error. Tracey v. Altmyer, 46 N. Y., 598 , 604; Appleby v. Erie Co. Savgs. Bk., 62 id., 12,18; Carman v. Pultz, 21 id., 547; Briant v. Trimmer, 47 id., 96.

The judgment should be affirmed.

Judgment affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.