Carey v. Carey

4 Daly 270

Opinions

By the Court.*—Daly, Ch. J.

—It does not appear from the case as settled, that the defendant took any exception to the ruling that his testimony would be confined to what occurred between himself and his wife when alone together. The only objection made was by the plaintiff when the defendant was offered as a witness upon his own behalf, and all that appears' in the case is, “ objection allowed, and exception taken.” What objection was allowed? Not that the defendant was permitted to testify in his own behalf, for the objection was not allowed, as he was permitted to testify in his own behalf. Was an objection made by the defendant to the limitation of' the defendant’s testimony by the ruling of the judge ? If it were, it does not appear in the case, which refers to an exception taken to an objection which was allowed by the judge. It does not therefore clearly appear that the defendant took any exception, or whether it was he or the plaintiff that took an exception to the allowance of an objection, or what the objection was that was allowed. The defendant offered no testimony upon which to get a ruling by the court, nor did he put any question which the court excluded, to show us that he was injured by the exclusion of testimony which he was entitled to give, and which he was prevented from giving by the decision of the court. Unless he can show us upon this appeal how he was injured and in what the error of the court consisted, we cannot reverse the judgment and give him a new trial (Graham v. Dunigan, 2 Bosw. 521, 522.)

Footnotes

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Present, Daly, Ch. J., Robinson and J. F. Daly, JJ.