Raven v. Smith — 85 N.Y. Sup. Ct. 269

Majority

p. 269

John Raven, Respondent, v. William R. Smith, Appellant.

Headnote

Judgment — when reversed.

A judgment will not be reversed because of the improper admission of evidence upon the trial of the action, unless the party against whom the judgment was rendered was injured by the reception of such evidence.

Appeal by tlie defendant, William B. Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the clerk of tíie county of Westchester on the 9th day of October, 1893, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 5th day of October, 1893, denying the defendant’s motion, for a new trial made upon the minutes.

James R. Bowen, for the appellant.

Frederick W. Clark and A. J. Burns, for the respondent.

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. No 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 the reception of the copy in evidence..

It appears that at the time the verbal contract was made a Mr. Fairchild was present, who made minutes of the conversation.. Neither party asked him to produce his minutes, although he was-examined as a witness. Had they been produced it may' well be-that we should be better satisfied with the proof. But the parties

p. 270

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.

¥e cannot say the verdict was wrong.

The judgment and order should be affirmed, with costs.

Brown, P. J., concurred; Dykman, J., not sitting.

Judgment and order affirmed, with costs.