Murphy v. Tripp , 1865 N.Y. App. Div. LEXIS 61 ( 1865 )

By the Court, James C. Smith, J.

It is unnecessary to inquire whether the defendant was privileged from answering the questions addressed to him as a witness on the part of the plaintiff. Assuming that he was thus privileged, (a point upon which I express no opinion,) and that the justice incorrectly ruled to the contrary, it is mere speculation to say that the ruling prejudiced the defendant in the minds of the jury and produced the verdict against him. It had. no such effect legitimately. There is no evidence that such was its effect, in fact; and the presumption is the other way, since it was the duty of the jury to. base their verdict upon the testimony alone. The presumption that the jury violated their duty can not be indulged. It is easy to imagine that the adverse ruling, in connection with the defendant’s refusal to answer, may have created an impession in the minds of the jury that his testimony, if given, would have tended to make out the plaintiff’s case; and it is not improbable that a similar effect would have resulted from his bare refusal, even if it had been followed by a ruling that he was privileged ; but in either case such a conjecture should not be entertained, as the basis of reversing a judgment which is in all respects apparently free from error.

The only remaining question is whether there is any evidence to sustain the verdict. The testimony warranted the jury in finding that within an hour after the officer had posted the notice, at McGreal’s grocery, the defendant went there, asked if Hurlbut, the officer, had left any notice there, took the notice off the counter where it lay, and carried it away, saying “he didn’t want any such'thing up with his name on,” and that “it was his business to take them down, and he would take them all down.” Also that the officer posted the notice by pinning it to the wall; that the wind blew it down, and Mrs. McGreal picked it up and laid it on the counter till she could get something to put it up with, where it was lying when the defendant took it. I think" these facts bring the case within the statute, which makes liable any person who shall “take down or deface” such notice. The object of the statute is to prevent any interference with the paper put up by the officer, and the contents thereof, which will defeat its purpose—that is, giving notice of sale. The circumstance that the notice had been accidentally blown down, after the officer had posted it, and was lying on the counter, does not relieve the defendant if his design was to frustrate the purpose of the officer, and to prevent notice of sale being given; and that such was his design, the jury were warranted in finding from the facts and circumstances- presented by the testimony. If the defendant, with such design, had torn off a material part of the notice?and carried it away, he would have been literally guilty of defacing. He is none the less guilty within the meaning of the statute, having carried away the whole notice.

[Monroe General Term, June 5, 1865.

The judgment of the county court affirming that of the justice should he affirmed.

Judgment affirmed. •

Johnson, J. G. Smith, and 33. Darwin Smith, Justice.]