Westervelt v. Burns

27 Misc. 781, 57 N.Y.S. 749

Opinion

Leventritt, J.

This was an action on an assigned claim. The defense was payment. From the evidence the conclusion of the justice was fully warranted. There is but a single question of law presented for review, and it arises from a denial, of the plaintiff’s motion to strike out certain testimony. It having been introduced without objection, the disposition of the motion was within the sound discretion of the court. Miller v. Montgomery, 78 N. Y. 282; Murray v. Fox, 39 Hun, 108; affirmed, 104 N. Y. 382. A party against whom a witness is called and examined cannot, as ' was done in the case at bar, lie by and speculate on the chances, first.learning what the witness testified, and then, when he, finds the testimony unsatisfactory, object either to the competency of the witness, or to the form or substance of his testimony. Quin v. Lloyd, 41 N. Y. 349. But even, if the plaintiff had preserved his right by a seasonable objection, the- motion to strike out could'.'not prevail, as it was general in form and directed against testimony, part of which was entirely competent. Spaulding v. Hallenbeck, 35, N. Y. 204 McCabe v. Brayton, 38 id. 196.

The judgment must be affirmed.

Fbeedmak, P. J., and MacLeait, J., concur.

Judgment-affirmed, wit-b costs to respondent,