Majority
p. 532ABIJAH CURTISS, Respondent, v. WILLIAM P. MOORE, Appellant. Before Sedgwick, Oh. J., Freedman and Truax, JJ. Decided June 1, 1885.
Headnote
Evidence.—Gode Giv. Proc. § 829.Appeal from judgment in favor of plaintiff entered on the verdict of a jury, and from an order denying a motion
p. 533
for a new trial upon the minutes, on the ground that the verdict is against law and evidence, and contrary to the weight of evidence.
Plaintiff was the holder of a promissory note made by the defendant to the order of one Clifford W. Clarke, and by said Clarke indorsed and delivered to the plaintiff. Clarke died before the trial took place. On the trial the defendant, who had been called as a witness in his own behalf, was asked by his counsel two questions, which tended to show that the note in suit was given by the defendant to said Clarke, to take up a note on which defendant was bound. These questions were objected to on the ground that the defendant could not testify to a personal transaction between himself and the deceased, through whom the plaintiff derived his title to the note. The objection was sustained, and the defendant excepted.
William L. Flagg, for appellant.
J. Q. A: Johnson, for respondent.
The Court at General Term (after stating the facts as above), said:—“It was not error to exclude this testimony (§ 829, Code; Alexander v. Dutcher, 70 N. Y. 385 ; Church v. Howard, 79 Ib. 415). . .The defendant offered in evidence the note which he claimed was the note to take up which the note in suit had been given. This was excluded as immaterial, and the defendant excepted. As their evidence then stood and now stands, this note had no bearing on the case. It was not error to exclude it.”
Opinion by Truax, J.; Sedgwick, Ch. J., and Freedman, J., concurred.
Judgment and order affirmed, with costs.
Cases cited
- Alexander v. Dutcher 70 N. Y. 385 p. 533