Burke v. . Baker

80 N.E. 1119, 188 N.Y. 561, 1907 N.Y. LEXIS 1192

• Court: New York Court of Appeals
• Decided: April 2, 1907
• Status: Published

Opinion

Per Ouriam.

The unanimous decision of the Appellate Division that there is evidence supporting or tending to sustain the findings of fact leaves open in this court the single question whether the findings support the conclusions of law. An inspection of the findings leads to the conclusion that this question must be answered in the affirmative.

A further question is raised by objection and exception to the admission in evidence of certain entries in the diaries of Thomas P. Burke, the plaintiff’s testator, relating to services alleged to have been rendered by him to the defendants. The le'arned trial judge ruled as follows : “ I will permit the entries for the purpose of showing his connection with- the course of the litigation.” These entries must be regarded as self-serving declarations and clearly inadmissible.

We have reached the conclusion, however, after an examination of the evidence that their admission is not to be regarded as prejudicial error. There is evidence in' the record, apart from that contained in the diaries, warranting the findings .that Thomas P. Burke, the plaintiff’s testator, was employed by the defendants and rendered legal services as therein set forth in detail.

The judgment appealed from should be affirmed, with costs.

Gray, Edward T. Bartlett, Willard Bartlett, Hiscock and Chase, JJ., concur; Cullen, Ch. J., and Haight, J., dissent on the ground that the admission of the diary of plaintiff’s testator was fatal error.

Judgment affirmed.