Hogan v. Mutual Aid & Accident Ass'n — 58 N.Y. St. Rep. 212

Majority

p. 212

Mary Hogan, as Executrix, etc., Resp’t, v. Mutual Aid and Accident Association, App’lt.

(Supreme Court, General term, Fifth Department,

Filed January 18, 1894.)

Headnote

1. Appeal—Evidence.

It is not error to refuse to strike out evidence admitted without objection.

2. Same.

Testimony, which is hut partially impaired by cross-examination, cannot be properly stricken out, even in the discretion of the court.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

Henry M. Hill, for app’lt; P. P. King, for resp’t.

This action was brought to recover the sum of $2,000 upon a policy of insurance issued by the defendant upon the life of Hugh O’Haire, the plaintiff’s testator. The defense was that the deceased, in his application for insurance, had falsely' represented his age to be but 47, when in fact he was much older, and that in his application he .had agreed that his representations should form the basis of his contract with the defendant. Udou the trial the plaintiff called as witnesses Patrick and John O’Haire elder brothers of the deceased, who testified that he was born in County Louth, Ireland, in the year 1838. Patrick was bom in 1830,and John in 1833; so that one was eight years and the other five years older than the deceased. On the cross-examination they conceded they could not recollect the circumstances of the birth of Hugh, or the year, independent of the statements of .their father, and the general talk in the family. But Patrick recollected him as an infant in the cradle; and John as a boy running^round, when he (the witness) was seven or eight years of age. No objection was made to the reception of this evidence. After it had been taken, the defendant moved to strike it out. The court refused, and an exception was taken. This presents the only question which we are requested to consider upon this review.

We think that the ruling of the trial court was correct. When evidence is admitted upon a trial by jury, without objection, or properly under objection, which for reasons subsequently appearing, should not be considered by the jury, its retention is discretionary with the court, and it is not error to refuse to strike it out. The remedy of the party is to ask the court to instruct the jury to disregard it. Marks v. King, 64 N. Y. 628 ; Platner v. Platner, 78 N. Y. 90 ; Holmes v. Moffat, 120 N. Y. 159 -163; 30 St. Rep. 779 ; Pontius v. People, 82 N. Y. 339 .

p. 213

• But in this case the court could not properly, in its discretion, strike out the evidence, or instruct the jury to disregard it. The testimony of the witnesses was but partially impaired by their cross-examination. They were small children, and. could not, independently of the statements of their father, and what had always been talked and understood in the family, recollect the year of the birth of Hugh; but they remembered him from infancy, knew about their own ages, grew up with him, etc.,—pertinent facts bearing upon the age of Hugh, and which enabled the witnesses to know and testify nearly if not ■ to the exact year of his birth. The judgment should be affirmed.

All concur.

Cases cited

Marks v. King 64 N. Y. 628 N.Y. 1876-02-08 p. 212
Platner v. Platner 78 N. Y. 90 N.Y. 1879-09-16 p. 212
Holmes v. Moffat 120 N. Y. 159 N.Y. 1890-04-15 p. 212
Pontius v. People 82 N. Y. 339 N.Y. 1880-10-15 p. 212