Reed v. Zimmerman — 53 N.Y. St. Rep. 178

Majority

p. 178

Charles G. S. Reed, Resp’t, v. Henry C. Zimmerman, App’lt.^[1]

(New York Common Pleas, General Term,

Filed June 5, 1893.)

Headnote

1. Appeal—Common pleas—Conflict of evidence.

Where the record on appeal from the city court shows no evidence bearing on the dispute other than the conflicting testimony of the parties, there is nothing which the common pleas can review, as it is precluded from consideration of the weight of evidence by the judgment of the general term below.

2. Evidence—Memoranda.

A refusal by the referee to direct the production for inspection of a memoranda from which plaintiff read while testifying i£ not reversible error, where such memoranda was afterward produced and inspected and plaintiff cross-examined respecting its contents.

Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment entered upon a referee’s report.

Action to recover a balance due upon an account for money lent.

Millard C. Ernsberger, for resp't: Denis McMahon, for app’lt.

On the trial the controversy between the parties to this action was reduced substantially to the question whether or not defendant was entitled to be credited with the amounts of three several checks, $135, $140, and $159.75, and cash §100.05, aggregating $534.80. in payment on account of his indebtedness to plaintiff. Defendant maintained that these several items were by him applied in payment of the indebtedness,while plaintiff contended that they had reference to matters not connected with the subject matter of the action. On defendant rested the burden of proving his defense of payment, and no evidence appears in the record bearing upon the dispute other than the conflicting testimony of the parties, respectively. In such a case there is nothing which we may review, as we are precluded from consideration of the weight of the evidence by the judgment of the general term of the court below. Arnsiein v. Haulenbeek, 16 Daly, 382 ; 34 St. Rep.; 297; Third Natl. Bk. v. Cornes, 1 Silvernail (Ct. App.), 167; 2 St. Rep., 543 .

p. 179

Defendant’s exceptions concerning the memoranda from which plaintiff read while testifying were confined to the referee’s refusal to direct the production of the memoranda for inspection by defendant’s counsel. The record, however, shows that the memoranda were produced and inspected by defendant’s counsel after the referee’s ruling was had,and that plaintiff was cross-examined respecting their contents. Under the circumstances the error of the referee’s refusal, assuming it to have been such, was harmless, and the exceptions, therefore, afford no ground for reversal. City Bk. of B'klyn v. Dearborn, 20 N. Y., 244 ; Phillips v. Richardson, N. Y. Com. Pl., 35 St Rep., 377 . Furthermore, the error was waived. Crosby v. Day, 81 N. Y., 242 ; Neill v. Thorn, 88 id., 270, 277 .

The judgment should be affirmed, with costs.

Bookstaveb and Pryor, JJ., concur.