Raven v. Smith — 60 N.Y. St. Rep. 249

Majority

p. 249

John Raven, Resp’t, v. William R. Smith, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 14, 1894.)

Headnote

Appeal—Harmless evidence.

Error in admitting incompetent evidence is cured by the subsequent ad= mission of competent evidence of the same facts.

Appeal from a judgment in favor of plaintiff.

J. K. Bowen, for app’lt; Frederick W. Clark, for resp’t.

The plaintiff testified under exception that his men reported to him that they had been stopped from work, having been discharged by defendant. That did not injure defendant, for the fact of being stopped was testified to by another witness, and was not contradicted by defendant, who went upon the witness stand at a later stage of the trial. It is also objected that plaintiff was allowed to put in evidence a copy of a notice served by him on defendant; without having previously given notice for the production of the original. Such notice was given at the trial after defendant had failed to produce the original. Ho suggestion was made that defendant was unable to produce the original, or that he desired to do so. Nor did he, when upon the witness stand, deny receiving the notice. It is plain that defendant was not injured by receiving the copy in evidence. It ap

p. 250

pears that at the time the verbal contract was made a Mr. Fair-child was present, who made minutes of the conversation. Neither asked him to produce his minutes, although he was examined as a witness. Had théy been produced, it may well be that we should be better satisfied with the proof. But the parties elected to go to the jury upon their own testimony, and the verdict based upon it cannot be set aside as contrary to the evidence. So as to the measure of damages. Two witnesses testified the work could be done at a cost that would allow plaintiff a profit of five cents a cubic yard. Three testified that it would cost much more than the agreed price. As it is not disputed that plaintiff wished to proceed at the contract price, and was not called upon to do ,so, the jury may well have believed the plaintiff’s witnesses. We cannot say the verdict was wrong.

Judgment affirmed, with costs.