Hazewell v. Coursen

Headnote

Judge's charge—that plaintiff must maintain his case by “ uncontradicted evidence "—when not deemed error■—when specific objection to must be made.

Appeal by plaintiff from judgment dismissing complaint with costs entered upon a verdict, in favor of defendant, and also from an order denying her motion, upon the minutes for a new trial.

Action to recover damages for the alleged conversion by the defendant of a contract for the sale and purchase of lands. The trial judge charged that “ the burden of proving the plaintiff’s case rests upon the plaintiff and she must establish that fact, by a preponderance of uncontradicted evidence,” to which plaintiff excepted generally.

The court at General Term said, “ To sustain the exception, we must suppose that the judge conveyed the notion that if the case for the plaintiff were opposed by oral testimony or by circumstances or inferences, that the plaintiff could not in any event recover. This ground could not be taken, without it also being true, that the defendant’s case should not be sustained by the jury, if it were opposed in like manner. The result would be, that the judge would be of the opinion that neither party was entitled to a verdict on the merits of the respective cases, for certainly each was contradicted, in a narrow sense by the other. It is impossible to imagine that the counsel or jury took this to be the judge’s meaning or opinion.

“ On the whole, it seems to me that it is a case where the general purport of the charge was correct and that inadvertently a phrase was used in a peculiar way.. A general exception was therefore not valid and did not call the attention of the court to the very point that is now taken.

On such a point to make a valid exception, it should be necessary to state it specifically to the court.”