Ludins v. Metropolitan Life Insurance

117 N.Y.S. 156

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 27, 1909
• Status: Published

Opinion

LEHMAN, J.

The defendant herein has had a fair trial, and the verdict of the jury is not against the weight of evidence. The errors in the admission of testimony which, defendant relies on are not serious enough to justify a reversal. Most of the hypothetical questions were properly allowed. They were put on cross-examination to test the credibility of the witness upon his statement that cancer must exist at least four months before death. They do not assume^ that these facts exist in this case. Where the questions were inadmissible, the answers were of such nature as to make the error entirely immaterial. The one serious error in the admission of ’a conversation with the physician was rendered immaterial by the subsequent questions allowed without objection.

The charge was fair, and, on the whole, favorable to the defendant.

The trial justice properly refused to charge as requested on the “undisputed evidence” of the case. Such a charge would have made the. hearsay evidence contained in the so-called history of the case in an unproven hospital record the final test in .this case, and practically removed all questions of fact from the jury. The final request to charge was possibly correct, and should have been granted. The trial judge, however, clearly showed by his remarks that he misunderstood the request to charge. Under such circumstances, we should not reverse the verdict made upon a charge as fair on the whole as the charge under consideration.

The judgment should be affirmed, with costs. All concur.