Dresler v. Hard — 57 N.Y. Super. Ct. 192

Majority

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JOHN H. DRESLER, Respondent, v. GEORGE M. HARD, Impleaded, etc., Appellant.

Headnote

Expert in handwriting, what testimony of, inadmissible—Estoppel, when necessary to plead. General exceptions to refusals to charge requests raises no question.

An expert in handwriting was called as a witness, and there was then exhibited to him a receipt, and certain other papers properly in evidence, and then lie was asked to state, after comparing all the papers, but especially their dates, whether the date of the receipt was Jan’y 22d or July 22d, the evidence was excluded, Held, that it was properly excluded.

When the matters which are relied on by a defendant to constitute an estoppel do not affect the issues as made by the pleadings as to the original obliga

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tion, they must be pleaded in order to give the defendant a right to offer testimony in support of them.

An exception to refusals to charge in the following form, “ I except to the refusal of the court to charge each and every request submitted by me as requested that he has declined to charge, and to the refusal of the court to find any requests as requested which he has charged in substance,” raises no question for determination by the general term (per Tbuax, J.)

Before Sedgwick, Ch. J., and Truax, J.

Decided June 28, 1889.

Appeal from judgment and from order denying motion for a new trial, made upon the minutes.

The complaint alleged that, about November 1, 1880, plaintiff agreed to purchase of defendants, and defendants agreed to sell and deliver to plaintiff, one thousand shares of a certain stock, for the agreed price of $4,000, payable in four months, for which sum of $4,000, and interest plaintiff gave to defendants his promissory note ; that when that note became due, plaintiff paid to defendants $1,000, on account of principal and the interest on $4,000, to that date, and gave to defendants his promissory note for $3,000, at four months ; that when this note became due plaintiff paid defendants $100, on account of the principal and the interest on $3,000, to that date, and gave his promissory note for $2,900, at three months; that when this note became due plaintiff paid to defendants $200, on account of the principal and the interest on $2,900, to date, and gave his note for $2,700, at three months; that when this note become due plaintiff gave to defendants, in renewal thereof, his note for $2,700, at four months; that when this note became due plaintiff paid defendants $700, on account of the principal and the interest to that date on $2,700, and gave his note for $2,000, at three months; that when this note became due plaintiff paid to defendants on account of the principal $250, and the in

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terest to that date on $2,000, and gave his note for $1,750, at three months; that all these payments were made and notes given by agreement between the parties; that the stock was originally to be delivered when the first note was given, but by agreements from time to time the delivery was postponed until November 18, 1882; that when the last of the above-mentioned notes became due, November 18, 1882, it was agreed between the parties that plaintiff should pay defendants $250, on account of the principal of that note and interest on $1,750, to that date, and should give his promissory note for $1,500, at three months, and that defendants should deliver to plaintiff the said shares . of stock on or before the first day of January, 1883; and in case they failed so to deliver the same that the said sale should be considered cancelled and rescinded, and the said defendants should then return to this plaintiff the said note for $1,500, and repay to him the moneys so paid to them, as aforesaid, on' account of such purchase with interest. That on the said first day of January, 1883, the said defendants, having wholly neglected to deliver to plaintiff the said shares in pursuance of said last mentioned agreement, this plaintiff demanded of said defendants the said one thousand shares of the Manhattan Refining Company’s stock, and the said defendants wholly neglected and failed to deliver to plaintiff the said shares of stock on the first day of January, 1883, but then agreed and promised to return to the plaintiff the said note for $1,500, and promised to pay and return to him the said several sums of money so paid by him, as aforesaid, with interest, but had ever since wholly neglected and refused to pay the said money or any part thereof; that said note for $1,500 was not paid at maturity, but was renewed at defendants’ request and further accommodation; that when said renewal note became due,

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defendants paid on account thereof $250, and plaintiff, at defendants’ request and for their accommodation, renewed the same for $1,250 ; that when this renewal note became due defendants paid on account thereof $500, and plaintiff, at defendants’ request and for their accommodation, renewed the same for $700; that when this $700, became due, defendants neglected and failed to pay it or any part of it, and plaintiff paid the same in full, and prayed judgment for the several sums paid by plaintiff to and for defendants, with interest thereon from the dates of the respective payments.

Defendant Hard answered. By his answer he denied all the allegations in the complaint, and then set forth, as an affirmative defence, that on January 1, 1886, plaintiff and defendant Blauvelt had an accounting and settlement on which there ■ was found due from Blauvelt to plaintiff the sum of $6,677.49; that Blauvelt delivered to plaintiff, and plaintiff accepted, in full settlement of said account, Blauvelt’s promissory note, and that all matters set forth in the complaint, as well as other matters between said Blauvelt and plaintiff, were included in said settlement and the amount of the note.

The other facts sufficiently appear in the opinion.

Hayes & Greenbaum, attorneys, and Daniel P. Hayes of counsel for appellant, on the questions considered in the opinion, argued:

I. The court erred in refusing to allow the witness Carvalho to state whether, in his opinion, the date on the receipt, Exhibit B., was January or July. The witness being an expert it was proper, and violated no rule of evidence to ask him his opinion, he having compared this receipt with the note which was put in evidence upon a material point in the case. The jury were entitled to the benefit of his

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opinion, and the exclusion of it was error and fatal to the defendant Hard.

II. The court further erred in refusing to submit to the jury the question as to whether the plaintiff would not be estopped if he stood by with knowledge of the interest of Mr. Hard in this action and allowed Mr. Hard to make a settlement with the assignee. An estoppel may be taken advantage of without being pleaded. Rogers v. King, 66 Barb., 496 .

Isaac L. Egbert, attorney and of counsel, for respondent, on the questions considered in the opinion, argued:

I. The opinion of the expert Carvalho as to the date on the receipt', Exhibit B, was properly excluded by the trial judge. This was not a case of disputed writing, and there is no rule of law -under which the proposed testimony would be permissible. The handwriting of the date of Exhibit B. was admitted to be that of defendant Blauvelt, by both sides, and the question was: what it was ? what it meant ? not who wrote it. It was, therefore, for the court and jury to interpret, and the opinion of the expert was wholly inadmissable. Even in cases of disputed handwriting, the admission of such comparisons was an innovation before the Act of 1880, now as amended by the Act of 1888. These acts, however, confine the authority for such comparisons to cases of “ disputed writing.” Laws of 1888, chap. 555; Peck v. Callahan, 95 N. Y., 73 .

II. The exception to the refusal of the court to charge as requested by the appellant is not specific, and it appears from the charge that the appellant’s requests were substantially complied with.

III. The refusal to charge the 8 th request was proper. The defendant had not pleaded the alleged estoppel. (§ 500, Code Civil Pro., subdiv. 2.)

The defendant placed upon the witness stand an expert in handwriting, and exhibited to him a receipt, at the same time exhibiting to him other papers, properly in. evidence in the cause, and asked him to say, after comparing all the papers, but especially their dates, whether the date of the receipt was Jany. 22, or July 22. It was for the interest of the defendant to show that it was the former. The witness was not called upon to give his opinion of the handwriting. This was not in dispute. As it was the office of the jury to find what the date was, I am of opinion, it was not competent for the witness to speak to that. I do not deny that it would have been competent for the expert to testify as to an analysis of the lines that made up the date, and by that to exhibit details which might escape the attention of ordinary observers, and that the jury might consider such testimony. This was not the object of the question, which was properly excluded.

The defendants’ counsel asked the court to charge, which the court refused to do, that “ if the jury find that Mr. Dresler knew that Mr. Hard was interested in the sale of the Manhattan stock in question and made no claim against Mr. Hard, filed his claim with the assignee against Blauvelt, individually, and allowed Hard to go on and make a settlement with the assignee of Blauvelt, he is estopped from making any claim against Mr. Hard, and cannot recover against him, in this action.”

There was no question as to whether the conduct of the plaintiff, as described in the request, might be considered as evidence against the plaintiff of what his relations were with Blauvelt, individually, or jointly with Hard.

The counsel for appellant has not pointed out what testimony there was in the case that required the court to make the charge as requested; but I

Concurrence

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am of opinion, with the court below, that he was bound to refuse the request, because the matters that were supposed to constitute an estoppel had not been pleaded. These matters did not affect tho issues as made by the pleadings as to the original obligation. If the plaintiff were right on those issues he proved his case, and the law fixed the appellant as liable. A subsequent estoppel would not disprove the existence of the original obligation, but if it afterwards occurred, and had the force claimed for it, it would be an equitable defence or ground for the plaintiff not being permitted to enforce his right and, in effect, an extinguishment of that right. All this would constitute new matter, and should have been pleaded to give the defendant a right to offer testimony on the subject. § 500 Code Civil Procedure, subd. 2.

Certain questions were admitted by the court, against appellant’s objection. They were ' to be allowed, in the discretion of the court, upon cross-examination.

The judgment and order should be affirmed, with costs.

I am of the opinion that the appeal book does not show that the defendant excepted to the refusal of the trial judge to charge certain requests. The alleged exceptions are presented by the following words: “I also except to the refusal of the court to charge each and every request submitted by me as requested, that he has declined to charge, and to the refusal of the court to find any requests as requested which he has charged in substance.” Then follow fourteen requests to charge.

An exception to a refusal to charge should be specific. It is not enough for counsel to say, in general terms, that they except to the refusal of the

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court to charge each and every request that it has declined to charge. The case should show that the trial judge was requested to charge a certain proposition, that he refused to do so, and that an exception to such refusal was duly taken. The court at general term should not be required to examine the charge of the trial judge in order to determine whether the appellant has or has not a good exception to a refusal to charge as requested. What refusal is excepted to should appear from the exception itself. Briggs v. Waldron, 83 N. Y. 586 ; Baylis v. Stinson, 110 Ib. 624.

The judgment and order are affirmed with costs.