Lansing v. Coley

13 Abb. Pr. 272

Opinion

By the Court.

Footnotes

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*— Gould, P. J.

—The only question in this case, which is of general importance, arises upon the defendant’s exception to the exclusion of part of an answer to the seventh interrogatory put to William Lansing. The excluded part of the answer is plainly—and the defendant’s counsel in his argument concedes it to be—not responsive to the interrogatory : but he • says that the party putting the question is the only one who can object to the answer on that ground. That is to say, a party whoffinows that he has a willing witness, can shape his interrogatory so as to touch an entirely proper matter; and one about which the opposite party has no desire to propose a cross-interrogatory, and after answering what is asked, the witness can volunteer an entirely distinct piece of evidence, not even hinted at in the question, and the party to be injured by it is not at liberty to object to the evidence so impertinently, and it may well be fraudulently, put in. The claim is too bald to be entertained for a moment. The ruling at the circuit was clearly right.

The defendant’s point, that the answer calls for the production of something more than the notary’s certificate of protest and notice, has been ruled otherwise; and is too well settled to re- • quire further notice here.

I can see no .error in either of the rulings as to the admission or exclusion of evidence; and the charge seems to me to have been entirely fair, sufficient, and legally correct. The defendant’s requests to charge are complicated, and likely to confuse a jury; while the charge, as given, is comparatively free from the confusion, and really covers all parts of the requests to which the law entitled the defendant-.

I should affirm the judgment.

Hogeboom, J., concurred.

Peckham, J., also concurred, though with some doubt as to the point of the effect of a verified answer upon a notarial certificate. He considered this point, however, to be almost settled by previous decisions.

Judgment affirmed.

Present, Gould, P. J., Hogeboom and Bockes JJ.