Wright v. Schnaier

Bischoff, P. J.

Hnder objection by the defendant’s counsel, the trial court admitted testimony which tended to show that the plaintiffs were induced to enter into a contract for the supply of certain marble work, at the price therein named, by the defendant’s representation that an offer to do the work for less than the amount of the plaintiffs’ previous offer had been made to him. The contract was in writing, and, conceding the technical incompetency of the evidence, it does not appear that prejudice to the defendant resulted from its admission. It did not in any manner tend to vary or contradict the terms of the contract, or bear upon the issue. Harmless error affords no ground for reversal. De Graaf v. Wyckoff, 118 N. Y. 1, 5; 3 Silv. Ct. App. 507, and cases in note.

Hnder like objection testimony was elicited, upon the cross-examination of an expert called for the defendant, which tended to establish the competency of a witness called as an expert in the plaintiffs’ behalf. This was not error. In determining the question of the competency of a witness called to give expert testimony, the • court is not, as appellant’s counsel insists, confined to the statements of such witness. The testimony of other witnesses touching his competency is admissible. Lawson Exp. Test., 236; Rogers Exp. Test., § 17; Underh. Ev., p. 272, § 188, note 2.

The contract for the supply of the marble work, the defendant’s prevention of performance of which was in issue under the plaintiffs’ third cause of action, was silent as to the time-for its performance, and when the parties had concluded the introduction of evidence it appeared by the testimony of the plaintiffs’ witness, Eobinson, and the admission of the defendant, that the performance was to be begun upon notice by the defendant. It furthermore appeared from Eobinson’s testimony that no such notice was given, and it was conceded that the defendant procured the work to be done by persons* other than the plaintiffs. True, the defendant testified that the plaintiffs, by their representative, Eobinson, had intimated their unwillingness to proceed with the work, owing to a dispute growing out of another transaction, but this state of the evidence, coupled with the fact that the defendant’s testimony was that of an interested witness, presented a sufficient conflict to require submission to the jury of the question as to which of the parties was in fault for nonperformance. Hence there was no error in the trial court’s refusal to dismiss the complaint as to the cause of action last re-, ferred to.

Ho other errors are claimed upon this appeal, and the judgment, should, therefore, be affirmed, with costs.

Leventritt and Clarke, JJ., concur.

Judgment affirmed, with costs.