Citation Numbers: 84 N.Y.S. 705
Judges: Woodward
Filed Date: 11/20/1903
Status: Precedential
Modified Date: 11/12/2024
The complaint in this action alleges that the plaintiff’s testator owned and held a first mortgage of $6,500 on certain land in Westchester county, and that the defendant, as attorney
The defendant concedes an indebtedness to the plaintiff, as executrix, to the amount of $1,200 or $1,300, growing out of the transactions set out in. the complaint or in the answer, but urges that a considerable part of the money realized upon the sale of the properties was expended by direction of plaintiff’s testator upon certain properties ; but the evidence upon this proposition is not at all satisfactory. The defendant, in common with the plaintiff, moved for the direction of a verdict, and the questions of fact and the credibility of witnesses were thus left to the determination of the court, and must be conclusive here.
One of the grounds for reversal now urged is that an alleged copy of a proposition made to plaintiff’s testator by the defendant was read in evidence under the objection of defendant’s counsel. The plaintiff had served notice upon the defendant to produce the original of this proposition. This the defendant’s counsel refused, and objected to its introduction upon the ground that it was made in a different transaction. The plaintiff then offered in evidence a copy of the paper, which was received and read. No other objection was urged at the time, but subsequently it was suggested that it was not proved to be a copy of the proposition, but the trial court properly held that it was then in evidence, and refused to strike it out. There was a conflict of evidence as to whether the defendant had signed the original paper, and defendant now urges that this presented a question for the jury. The trouble with this is that it comes too late. He moved for the direction of a verdict, and when the court had directed a verdict on the motion of the plaintiff he merely excepted to the direction, but did not ask to go to the jury upon this or any other question; and to the extent that the question was material it must be deemed to have been determined by the court as conclusively as though passed upon by the jury.
The judgment and order appealed from should be affirmed, with costs. All concur.