Milliner v. Lucas — 10 N.Y. Sup. Ct. 496

Majority

p. 496

JOEL P. MILLINER, Appellant, v. CHARLES LUCAS, Respondent.

Headnote

Statements of vender of personal property—inadmissible against Ms vendee— When judgment not reversed, for improper admission of evidence.

The statements of a véndor of personal property are inadmissible as against a. party claiming such property from him, except in cases where such last named party really defends the action for the benefit of such vendor.

A judgment will not be reversed for the admission of improper, irrelevant, immaterial or cumulative testimony, when abundant competent evidence was given to sustain it, and the court can see that it has occasioned no injury to the party complaining.

Appeal from a judgment of the County Court, reversing the judgment rendered by a justice.

This action was brought to recover the price of a quantity' of potatoes, sold and delivered to the defendant. The plaintiff claimed that the potatoes were his property, and the defendant claimed to have purchased them of one - Slocum, who raised them on the plaintiff’s land. The justice found for the plaintiff, and rendered judgment in his favor for §101.84, besides costs. The defendant appealed to the County Court, where the judgment was reversed upon the law.

A. P. Butts, for the appellant.

H. J. Thomas, for the respondent.

The judgment rendered by the justice upon the facts, was clearly warranted by the evidence, and could not be disturbed for any error in that particular.

The only ground of error stated in the notice of appeal, which I think is sufficient to raise any valid ground for the review of the case, and' upon which the judgment was doubtless reversed, is the fourth specification: that the justice erred in overruling the objection by the defendant’s counsel to the question put by the plaintiff’s counsel, asking the witness to go on and state what the arrange

p. 497

ment was between plaintiff and Slocum, asked of plaintiff himself, and the same objections to the testimony of Allen Marshall, Hiram Doty and others, on the subject of Slocum’s admission of what the arrangement was, etc.

So far as the defendant’s objection related to the testimony called for by the questions put to the witness, it was clearly not well founded. The question at issue was: in whom was the property in the potatoes ? They were planted on the plaintiff’s land by Slocum, and it was clearly proper for the plaintiff to show the contract between him and Slocum, in regard to the planting, cultivation and marketing of said potatoes. This was part of the res gestee, and this was all that was called for by, or stated in answer to, the question put to the plaintiff. It was: What was the conversation or arrangement with Slocum about the potatoes, and how did the potatoes belong to you ?

The testimony of the witnesses Marshall and Doty, stand upon different grounds. They were asked whether they heard a conversation between plaintiff and Slocum, and they respectively, in answer, testified to a conversation between plaintiff and Slocum, some two weeks before the trial, in October, 1873, the previous conversation testified to by the plaintiff, being in the spring previous. This testimony is corroborative of the testimony so given in respect to the contract by the plaintiff. This testimony, if it had been distinctly objected to as -an admission or declaration of Slocum, the defendant’s vendor, made long after the making of said contract with the plaintiff, should have been held inadmissible at the time, or stricken out afterward, if there had been any mistake or surprise in receiving it, unless its reception can be justified on the ground that the defendant was really defending the action in the interest, and for the benefit of Slocum, within the exception to the general rule stated and allowed in Paige v. Cagwin,^[5] Gardner v. Barden,^[2] Tousley v. Barry,^[3] Foster v. Beals.^[4]

The defendant really had no interest in the defense of the suit, for he had not paid for the potatoes. He had advanced Slocum, in all, twenty-five dollars on his lot of 600 or 800 bushels of potatoes, which he purchased at fifty cents a bushel. Slocum was, in this view, the real defendant in interest, and his admissions might

† † 34 N. 1., 433.

‡ ‡ 16 N. Y., 500 .

§ § 21 N.Y., 250 .

p. 498

properly be received, to affect his interest, but if this were not so, the reception of the evidence of Marshall and Doty did the defendant no injury. The evidence was merely corroborative of the plaintiff’s, upon the question of the original contract between him and Slocum, which was abundantly proved without such corroboration by the plaintiff’s testimony, which was not contradicted by Slocum, although he was sworn as a witness, and was really not disputed. A judgment should not be reversed for the admission of improper, irrelevant, immaterial or cumulative testimony, when abundant other competent evidence whs given to sustain the find-, ing, and the court can see that it has occasioned no injury to the party objecting to it.^[5]

The judgment of the County Court should be reversed, and that of the justice affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment of County Court reversed, and that of justice affirmed.

* Wells v. Cone, 55 Barb., 585 and 589; Crary v. Sprague, 12 Wend., 41 ; Spencer v. Saratoga and Washington R. R. Co., 12 Barb., 383 ; Buck v. Waterbury, 13 id., 116, and not even in a capital case; The People v. Gonzalez, 35 N. Y., 49 and 59.

Footnotes

* 7 Hill, 375 .