Ellis v. Thompson

Per Curiam :

The action was brought to recover $5,000 damages for an alleged breach of a contract which provided that a play called “ Bich and Poor” should be produced by the defendant at as early a date as was reasonably convenient in the,United States, and in as proper a form as was consistent with the necessities of production in a first-class theatre; that the defendant should pay the plaintiff $100 a' week while the play was being jilayed, until he should have paid the sum of $5,000 ; and that the defendant should produce the play continuously if there was reasonable success attending its production.

This is the second trial, the first having been had before the court and a jury, when the complaint was dismissed ;■ but the judgment entered Upon such dismissal was reversed by this court, and in the opinion delivered upon such reversal (Ellis v. Thompson, 1 App. Div. 606) all the facts are fully stated, as are the issues presented by the pleadings, and need not, therefore, be repeated. A statement of the facts, moreover, is unnecessary, because in the absence of a certificate in the case that it contains all the evidence given upon the trial, we cannot review the facts for the purpose of determining whether they' support the findings of- the referee. This leaves, for our consideration, the exceptions in the case, which so far as they are urged or relied upon on this appeal, relate exclusively to rulings upon evidence.

The first of these relates to the striking out of the answer of the witness Salisbury, who was examined upon written interrogatories and was asked: “ Was or was not the play properly put upon the stage at the said representation? * * *” The objection was ■ taken to .so much of - the question as called for the opinion of the witness, and the answer was excluded by the referee. This ruling was expressly assented to by the counsel for the appellant. The

statement of the witness, therefore, that “ Mr. Thompson was very marked in his want of part perfection and careful study,” was not either responsive to any question asked, nor was it competent to .permit it.to be placed upon .the records. That this was a summary of the witness’ view and an expression, of opinion is self-evident; and; the ruling that the witness should not be allowed to.express ail opinion, but only to state facts, which- he observed, having ■ beeri assented to, we do- not see- how this exception is, available. The same reasoning may be applied to the objection, which was sustained, to the 14th interrogatory,.“ Did or did not the company give evidence of having properly réliearsed the. play before said representations ? ” The objection here was that it called for the conclusion of the. witness and not for any facts, not even for his opinion as an expert, and the ruling made by the referee we see no reason to interfere, with.

There were some minor rulings which were upon' matters so immaterial that, whether rightly or wrongly decided, they could not affect the result; and upon an examination of the whole record we can find no ruling of the referee which was so erroneous or • preju-i dicial as to justify our interfering with his conclusion. .

The judgment should, therefore, be affirmed, with costs.

Present — Van Brunt, P. J., Barrett, Rumsey, O’Brien and Ingraham, JJ. • •

Judgment affirmed, with.costs. ;