Ackley v. Welch — 65 N.Y. St. Rep. 721

Majority

p. 721

David B. Ackley, Resp’t, v. George H. Welch et al., Impleaded, etc., App’lts.

(Supreme Court, General Term, Fourth Department,

Filed February, 1895.)

Headnote

1. Appeal—Objections.

Where an objection to copies of letters that they were not the best evidence, is not taken upon the trial, it cannot be raised for the first time on appeal.

2. Same.

A general objection to a question or to the admission of letters can only be considered as applying to the competency or materiality of the point sought to be proved, and not to the competency of the witness or the evidence.

S. Evidence—Letters.

Proof that letters are mailed to a person, postpaid, raises a presumption that they were received by him and, until repelled by proof, is sufficient evidence of the fact.

Appeal from a judgment in favor of plaintiffi

John F. Dorthy, for app’lts ; F. L. Brown, for resp’t.

The referee found that the contracts set forth in. the complaint herein were duly made and executed by the parties-to this action; that the provisions of all of said contracts were complied with and fulfilled on the part of the plaintiff, but that the defendants failed to fulfill them upon their part; and that, by-reason thereof, the plaintiff sustained damage in the sum of $459.92. After a careful examination of the testimony given upon the trial, we are satisfied that the conclusions reached by the referee were sustained by the evidence, and that the judgment herein should not be disturbed unless some error has been committed in the reception or rejection o'f evidence.

On the trial the plaintiff, while being examined as a witness, was shown a letter written by him to the defendant Ritter, January 81, 1893. He testified that it was his signature to the letter; that he mailed a duplicate of it to the defendant Ritter at 84 West Broadway, New York City; that there was a card upon the envelope in which it was enclosed; and that he did not receive it back ; and that both the duplicate sent and the one retained were signed by him. The letter was offered in evidence by the plaintiff, The defendant objected to it, on the grounds that it was not properly proven, and incompetent; also, as “incompetent and immaterial, and not properly made for its .reception.” The letter was received in evidence, and the defendants excepted. The plaintiff also testified that:

“ There were two of these letters. The other one (dated February 6, 1893) I signed, and addressed and mailed to W. G. Ritter, New York. On the envelope was 1 George H. Welch & Go., D. B. Ackley, Manager, 75, Arcade, Utica, N. Y.’ I wrote on myself, ‘If not called for, return after five days.’ The address was 75, Arcade Building, and, if not called for, it was to be returned to that address. It was never returned.”

Again, the letter was shown the witness, and he testified:

“ I dictated this letter. That is not the letter that was sent, and afterwards came into my possession ; that is, á carbon copy was-made,'and, I think, was sent. That is the original. The copy was sent, or the duplicate of it. - It was sent by mail, postage prepaid, and addressed to W. G. Ritter, 84 Broadway, New York City, who claimed that to be his post-office address.”

After this proof was given, the letter was offered in evidence, and objected to as incompetent, immaterial, irrelevant, and not properly proved. The case then states:

“ This letter was offered December 19,1893, and is now marked 1 Exhibit 11,’ as it was received at that time, but not marked.” When first offered, it was objected to upon the same ground as the preceding one, and received, to which the defendants excepted.

The most serious question presented upon this appeal is as to tffp Correctness of these rulings. It may be observed in passing that the letters sent and those retained were signed by the plaintiff, and perhaps -might be regarded as duplicate originals, and thus the rule preventing the introduction of a copy without first giving the defendant notice to produce the original may not have been violated in receiving .them in evidence. Totten v. Bucy, 57

p. 723

Md. 446 . But, be that as it may, it will be observed that the defendants at no time objected to the admission of these letters upon the ground that they were copies or not the best evidence. The only objections raised to either were that it was incompetent, immaterial, irrelevant, and not properly proved. We think none of these objections were well taken. Proof that these letters were mailed to the defendant, postpaid, raised a presumption that they were received by him, and, until repelled by proof, was sufficient evidence of that fact. Bell v. Lycoming Fire Insurance Co., 19 Hun, 238 ; People ex rel. Swinburne v. Albany Medical College, 26 id., 348 , affirmed 89 N. Y. 635 ; Austin v. Holland, 69 id. 571; 2 Whart. Ev. § 1323. The letters were clearly relevant, material, competent, and properly proved. The only valid objection that could have been made to their reception, even if they were copies, was that they were not the best evidence. Having omitted to raise that objection upon the trial, we do not think it can be raised for the first time upon appeal. To entitle a party to the review of a ruling of a trial court upon the question of admitting or rejecting evidence, there must be a proper objection taken to the evidence when offered, and an exception taken to the ruling thereon. Overruling a general objection to evidence will be sustained on appeal, unless it clearly appears that there is some ground of objection which could not have'been obviated if it had been specified, or unless the evidence, in any aspect of the case, was incompetent. Daly v. Byrne, 77 N. Y. 182 ; Williams v. Sargeant, 46 id. 481; Tooley v. Bacon, 70 id. 34 ; Quinby v. Straus, 90 id. 664. In Stevens v. Brennan, 79 id. 254, it was held that a general objection to a question could only be considered as applying to the competency or materiality of the point sought to be proved, and not to the competency of the witness to testify upon the subject. The objections taken by the appellants to the admission of these letters related to the materiality, relevancy, and competency of the evidence itself, and not to the manner of proving them. If the proper objection had been interposed, presumably the plaintiff would have obviated it by giving notice to the defendants to produce these letters. Hence we think that the defendants’ exceptions to these rulings were not well taken. We have examined the various other exceptions taken by the appellants, but have found none that require special discussion or that would justify a reversal.

Judgment affirmed, with costs.

All concur.

Cases cited

Daly v. Byrne 77 N. Y. 182 N.Y. 1879-04-25 p. 723