Ehrehart v. Wood — 55 N.Y. St. Rep. 31

Majority

p. 31

John H. Ehrehart, Resp’t, v. Palmer M. Wood, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed September 23, 1893.)

Headnote

Evidence.

Evidence as to the making of an entry on an account at or before the time of a settlement between the witness and defendant, for the purpose of discrediting plaintiff’s testimony as to his interview with defendant by showing knowledge at that time of such entry, is properly rejected as immaterial where there is no proof that such settlement took place before such interview.

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

Steele & Prescott, for app’lt; S. M. Lindsley, for resp’t.

This action is brought to recover a balance due for coal sold and delivered by the plaintiff to the defendant. The answer sets up two defenses. First, that the parties had settled and agreed upon the balance, and that the same had been paid before the commencement of this action ; second, that the plaintiff had broken the contract under which the coal was purchased, and the defendant had suffered damages thereby to an amount exceeding the plaintiff’s claim. These questions of fact were submitted to the jury, and it found a verdict for the plaintiff for the

p. 32

full amount claimed by him. From the judgment entered upon such verdict this appeal is brought.

After a careful examination of the evidence, we are not disposed to disturb this verdict. The questions were very fully and fairly submitted to the jury, and there is not such a preponderance of evidence in favor of the defendant as warrants us in setting the verdict aside on that account. Baird v. Mayor, 96 N. Y., 567 ; Roosa v. Smith, 17 Hun, 138 ; Fleming v. Smith, 44 Barb., 554 ; King v. N. Y., L. E. & W. R. R. Co., 50 St. Rep., 103 ; Beckwith v. N. Y. C. R. R. Co., 64 Barb., 300 ,308. Nov do we'find any error in the reception or rejection of evidence that warrants the granting of a new trial. The ruling most urgently complained of is the exclusion of the evidence offered by the witness Churchill, as to whether the entry he made on Exhibit 13 was made at or before he settled with the defendant. The argument is that, if it appeared by his evidence that such entry was on the exhibit when the plaintiff and defendant bad their interview, it would discredit the plaintiff’s version of that transaction. So it would, if it had appeared that the witness’ settlement with defendant was before the date of the interview between plaintiff and defendant. But it nowhere appears that the witness and Wood had settled before the time when the plaintiff and Wood had such interview, and therefore the evidence offered appeared to be utterly immaterial. It was not equivalent" to an offer to show that the indorsement was on the bill at the time of the interview between the plaintiff and the defendant. Hence there was no error in rejecting it. None of the other rulings complained of appear to be erroneous. We conclude, therefore, that the judgment and order appealed from should be affirmed, with costs.

Merwin, J., concurs; Hardin, P. J., not voting.