De Graffenried v. Miller

110 N.Y.S. 826

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 3, 1908
• Status: Published

Opinions

GREENBAUM,

J. Assuming, without holding, that the memorandum which Mr. Earle testified to as being made in the presence of the defendant’s wife and read to her, but which she did not examine or read, was entitled to be marked in evidence, I do not see how its exclusion injuriously affected plaintiffs. The contents of the paper had been testified to, and the marking of the paper in evidence could not strengthen the plaintiffs’ position. Defendant’s wife denied that the memorandum was made or read in her presence. A question of fact was thus presented; the justice having the contents of the paper before him as testified to by plaintiffs’ witness.

If the exclusion of the memorandum does not constitute reversible error, there is nothing left in the case but a disputed question of fact, which was decided in favor of the defendant, and should not be disturbed by this .court. The plaintiffs’ witness Earle concedes that the defendant was to have possession by November 4th, and that all repairs agreed upon were to be completed by that time, and defendant testified that he would lease the premises “provided he could get the apartment ready by the 4th of November.” One of the issues was as to whether there was a hiring or not.

There is a dispute between the witness Earle, plaintiffs’ agent, .and defendant’s wife as to the repairs agreed upon to be done; and as-to certain other repairs there is a conflict of testimony as to whether they were finished in time, and also as to whether such as were completed had been properly performed. In my opinion the judgment should be affirmed.

Judgment affirmed, with costs.