Riche v. Martin — 48 N.Y. St. Rep. 757

Majority

p. 757

Pasqual Antonio Riche, Resp’t, v. Lawrence Martin, App’lt.^[1]

(New York Common Pleas, General Term,

Filed November 7, 1892.)

Headnote

I. Appeal—New York common pleas.

On appeals from the general term of the city court of New York the authority of the common pleas to review evidence is measured by that of the court of appeals under like circumstances.

3. Evidence—Admissibility.

In an action on a promissory note, where the defense was partial payment, defendant’s counsel on cross-examination of plaintiff elicited the fact that certain sums of money had been paid him subsequent to the delivery of the note, and on redirect examination plaintiff was permitted to testify, under objection, that these sums were paid him for wages. Neld, that the testimony was competent.

3. Same—Motion to strike out, when, too late.

It is too late to ask to have evidence stricken out after acquiescing in its reception and improving the opportunity afforded by it for cross-examination.

p. 758

Appeal from a judgment of the general term of the city court of New York, affirming a judgment for plaintiff which was entered upon a verdict, and an order denying defendant’s motion for a new trial. Action to recover upon a promissory note against the maker, the defense being a partial payment.

A. C. Astarita, for resp’t; Abram J. Rose, for app’lt.

On the trial it was conceded that the note in suit was made and delivered in exchange for a loan of money of equal amount; the defense of usury was withdrawn, and there remained only that of partial payment The burden of sustaining it was upon the defendant; his own testimony was that of a party in interest, and, therefore, subject to discredit, though not directly impeached. EIwood v. Western U. Tel. Co., 45 N. Y., 549 ; Gildersleeve v. Landon, 73 id., 609 ; Honegger v. Wettstein, 94 id., 252.

In some respects defendant was corroborated by witnesses for the defense, but plaintiff’s denial, on cross-examination by defendant’s counsel, of ever having been paid anything on account of the amount of the note, presented a sufficient conflict of evidence to require a submission of the facts to the jury for determination. A verdict having been rendered for plaintiff for the full amount of the note and the court below having affirmed the judgment entered thereon, as well as an order denying defendant’s motion for a new trial, we cannot reverse though we should differ" in our views with those of the court below respecting the weight of the evidence. On appeals from the city court our authority to review the evidence is measured by that of the court of appeals under like circumstances, Arnstein v. Haulenbeek, 16 Daly, 382 ; 34 St. Rep., 297 ; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep., 553 , and it is well settled that the court of appeals will inquire only to ascertain if there is any evidence to support the judgment appealed from. Hazman v. Hoboken Land & Imp. Co., 50 N. Y., 53 , 55; Green v. Fortier, 80 id., 640.

A number of the exceptions taken to the trial justice’s rulings on the admission of evidence do not present 'the ground of the objection, and are for that reason unavailable. Cruikshank v. Gordon, 118 N. Y., 178 , 186; 28 St. Rep., 784 . We shall, therefore, consider those only under which the ground of the objection was stated.

On plaintiff’s cross-examination defendant’s counsel elicited the fact that certain sums of money had been paid plaintiff by defendant subsequent to the delivery of the note, and on re-direct examination plaintiff was permitted to testify, under objection and exception, that these sums were paid him for wages. The probability of the truth of the testimony was a matter to be determined by the jury, but we can conceive of no ground why the testimony was not material, relevant and competent, and being so the motion to strike it out was properly denied.

In rebuttal plaintiff testified, apparently without objection, to a conversation with defendant concerning an alleged payment of $100, and defendant’s counsel asked that the testimony be stricken out, and to the trial justice’s denial of the request exception was

p. 759

taken. The exception, however, is unavailable because the ground, for the request was not stated and because counsel could not insist upon compliance with his request- as matter of right. Pontius v. People, 82 N. Y., 339 , 347.

In view of the facts that counsel for defendant himself during., the progress of the trial offered to allow judgment to be taken-against him for substantially the same amount, that the facts conceded entitled plaintiff thereto, and that the court so charged without objection, it is incomprehensible how defendant could have: been prejudiced by remarks of plaintiff’s counsel to the jury that defendant had offered judgment for three hundred and twenty-two dollars, conceding the remarks to have been improper and counsel’s rebuke deserved. But, be that as it may, if defendant desired to avail himself of such remarks as- an objection, counsel should have protested at once against submission of the case to the jury; the court should have been asked to declare a mistrial and to order a new trial, and to a denial of the request exception should have been taken. Defendant should not be permitted to take his chances of a favorable verdict, and then urge, if the result of the jury’s deliberations prove adverse to him, that he was prejudiced. Having consented to the submission of the case to the jury, any objection to improper remarks of counsel for plaintiff was waived, and the motion for a new trial on the ground that the jury was unduly influenced because of them was properly denied.

The judgment and order appealed from are affirmed, with costs,

Bookstaver and Pryor, JJ., concur.