Carpenter v. Knapp — 50 N.Y. St. Rep. 261

Majority

p. 261

T. Ella Carpenter, Resp't., v. Edgar Knapp, App'lt.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

1. Trial—Rulings as to admission or evidence.

An error in the exclusion of evidence is cured by the subsequent admission of such evidence.

3. Same—Limitation or witnesses.

The court has power to limit the number of witnesses each party may examine as to any question where the opinion of witnesses is competent evidence.

Appeal from judgment in favor of plaintiff, entered upon verdict.

Action to recover damages for slander. Plaintiff was assistant postmistress, and had been legally separated from her husband. 'The alleged charges imputed unchastity to her.

The court on the trial limited the number of witnesses as to plaintiff’s character to four on each side.

Wm. R. Woodin, for app’lt;

Fred. F. Ackerman, for resp’t.

The complaint avers the utterance of slanderous words by the defendant concerning the plaintiff on several different occasions. One of these occasions was at a meeting of a Biblical Institute. The answer states that this occurrence was made at the invitation of the meeting, upon an inquiry made by the institute as to certain alleged improper relations between the plaintiff and a member of the institute. Upon the trial the court refused to permit proof of the fact as to these charges being a subject of discourse. The ruling might have force if the proof had not subsequently been admitted. The defendant’s witnesses, Hansberger, McCrone, Williams and Miller, all testified that the inquiry before the institute was as to certain alleged improper relations between the plaintiff and one Beanblossom, a student of the Biblical Seminary. The error was cured. Neil v. Thorn, 88 N. Y., 270 .

The only proof of character, proper under the pleadings, was the general character of the plaintiff. The defendant could not, as a part of the proof affecting this inquiry, prove the names of the witnesses who said her general character was bad, nor what was said by each about the plaintiff. Upon cross-examination by the plaintiff, such questions w J> Id be proper to affect the credibility of the witness and the might of his testimony on that subject. The court had the power to limit the number of witnesses each party might examine as to any question where the opinion of witnesses was competent evidence. Sizer v. Burt, 4 Den., 426 .

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.