Citation Numbers: 55 Barb. 585
Judges: Foster
Filed Date: 4/5/1864
Status: Precedential
Modified Date: 1/12/2023
I think there was no error in permitting the witness Schwab to state, “What, in his opinion, was the difference in value of the boat then, and as she was before the collision.” He did not give an opinion founded upon the testimony of others; but from the condition of the boat, as he saw it before the injury, while unloading, and as he saw it' after the injury. He had all the science in regard to the building and value of boats necessary to render him competent to testify as to the value, and he had made an estimate of the cost of repairing it. It has no analogy, in my opinion, with any of the cases where the courts have held that an opinion cannot be given; but is analogous to the case where an action is brought to recover for an unsoundness, or defect in an article which has been warranted to be sound or perfect. And in such case it is undoubtedly correct to ask the witness the difference in value between the article, if it had been as warranted to be, and as it in fact was. (Nickley v. Thomas, 22 Barb. 655. Brill v. Flagler, 23 Wend. 354. Casey v. Greeman, 4 Hill, 625. Joy v. Hopkins, 5 Denio, 84.) Besides, the answer of the witness could not possibly injure the defendants. He had given items of expense
And it is quite clear that the return of the justice is not to he treated as a bill of exceptions. It partakes more of the nature of a case to set aside a verdict or report of referees. And, in such cases, the whole case is to he examined, and if the court can see that substantial justice has been done, notwithstanding the alleged error, it will not interfere. (Bort v. Smith, 5 Barb. 285. Spencer v. Saratoga and W. Railroad Co., 12 id. 383.)
There was no error in the refusal to nonsuit the plaintiff. The defendant may demur when it appears on the face of the complaint that there is a defect of parties. (Code, § 144.) When it does not appear upon the face of the complaint, the objection may be taken by answer. (Id. § 147.) And if the objection be not taken by demurrer or answer, the defendant shall be deemed to have waived the same. (Id. § 148.) And where, in .an action for a tortious injury to personal estate owned by joint tenants, one of the joint owners is not a party plaintiff, and the defendant omits to avail himself of the nonjoinder, in pleading, he will not he allowed on the trial to prove the interest of the owner, not joined in diminution of the amount to be recovered. (Zabriskie v. Smith, 3 Kern. 322.) And the rule must be the same in the case of copartners.-
The remaining question is whether the evidence was sufficient to support the verdict. The plaintiff was without fault; his boat was close to the heel-path, for the purpose of unloading, where the canal was wide enough for three
The judgment of the county court should be reversed, with costs of the appellant on this appeal, and the judgment rendered by the justice affirmed.
Morgan, Bacon and Foster, Justices.]