Townsend v. Narragansett Fire & Marine Insurance — 36 N.Y. Super. Ct. 170

Majority

p. 170

CHARLES R. TOWNSEND and THEODORE E. TOWNSEND, Plaintiffs and Respondents, v. THE NARRAGANSETT FIRE AND MARINE INSURANCE COMPANY, Defendants and Appellants.

Before Barbour, Ch. J., Freedman and Sedgwick, J J.

Decided May 31, 1873.

Headnote

I. Evidence, Exclusion oe.—Ebbob in, when not ground fob beVebsal of Judgment, although an Exception was pbopebly taken.

1. When the question was put on cross-examination for the purpose of showing that the witness had on a previous trial given testimony in conflict with that which he on the then trial had given in answer to questions propounded on the direct examination, which evidence, though relevant, yet was of a relatively unimportant character when compared with the real merits of the case, and the General Term are of opinion that without a word of testimony from the witness, the verdict of the jury would have been precisely the same.

Appeal from judgment.

Howard Ellis and Samuel Jones, for appellant,.

Osborn E. Bright, for respondent.

The facts sufficiently appear in the opinion.

This action is "brought upon a policy of insurance. The jury found for the plaintiffs, and the appeal is from the judgment. Neither a motion for the direction of a verdict, nor a motion for a new trial, was made below. We can therefore only look at the exceptions in determining defendant’s right to a new trial. Of these there seem but two that are of sufficient moment to be specially adverted to.

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The first, which relates to defendant’s offer to show the quantity of tea kept on hand by other dealers than the plaintiffs, has already been disposed of by us adversely to the defendant in the case of the same plaintiffs against the Merchants’ Insurance Company of Providence, E. I.

The other relates to the exclusion of a certain question addressed by defendant’s counsel, to one of plaintiffs’ witnesses on his cross-examination, with the view of ascertaining from the lips of the witness whether on the trial of the case against the Merchants’ Insurance Company he had not given a somewhat different account of the doings of the members of a hook and ladder company in plaintiffs’ store at the time of the fire than he had given in this case. The question was a proper one, but it seems to have been excluded by the trial judge on his own motion, and upon the supposition that the witness had already been interrogated upon that point and had substantially answered the question. The case shows that in point of fact the witness had been examined in that direction, but not sufficiently so as to make the said question, which was more specific than any he had already answered, and more particularly directed his attention to his testimony given on the trial of the action against the Merchants’ Insurance Company, an improper one. The question should therefore have been allowed. But the error, if error it was, is not of sufficient importance to call for a reversal of the judgment. The whole inquiry into the action of the hook and ladder men on the night and upon the premises in question, though relevant, was of a relatively unimportant character, when compared with the real merits of the case, and as to these the case seems to have been thoroughly, ably, and fairly tried. Indeed, it is easy to see from the report of the whole case that even without a Avord of testimony from the witness referred to the verdict of the jury would have been precisely the

p. 172

same. The error must therefore he disregarded (City Bank of Brooklyn v. Dearborn, 20 N. Y. 244 ; Park Bank v. Tilton, 15 Abb. 384 ).

The judgment should he affirmed, with costs.

Barbour, O. J., and Sedgwick, J., concurred.

Cases cited

City Bank of Brooklyn v. Dearborn 20 N. Y. 244 N.Y. p. 172