Brown v. Newell (132 A.D. 548, 1909)

Chester, J.:

The questions as to the agreement of settlement and as to the memorandum in relation thereto are purely questions of fact. A careful examination of the testimony convinces us that the findings of the court with respect to these matters are supported by sufficient evidence.

The real question to be determined of course was what was the agreement of settlement. If we disregard entirely the memorandum and all of the conflicting testimony in relation to it, there still remains enough in the evidence in my opinion to justify the findings of the court in support of the plaintiff’s contention. It is true that the plaintiff’s - testimony in relation to it was contradicted by the defendant, but there is quite strong corroboration of the plaintiff’s contention to be found in the attending circumstances appearing from the evidence. This court, therefore, would not be justified in a reversal of the findings as against the weight of evidence because the preponderance thereof is rather the other way.

The trial was largely devoted to the evidence and opinions of experts pro and con with respect to the memorandum, and this conflict rather overshadowed the main issue to be determined. Three experts were sworn upon each side. It is not essential to review their testimony, but some rulings with respect to evidence upon this branch of the case are called in question, only one of which it appears to me is of sufficient moment to require consideration. That was the ruling admitting in evidence a page from a certain scientific book on inks, which was received under objection, for the purpose of determining what effect certain acids would have on certain kinds of ink. While'a witness for the defendant testified that, generally speaking, he agreed with the book in reference to acid tests upon nigrocene ink mentioned on the page in question, yet the evidence was purely hearsay, and should not have been' recieved. Although we think it should have been excluded, we think its reception under the circumstances of this trial was not reversible error. The trial was before the court without a jury,'. It did not relate to the main issue to be determined, but was received to dispute the theories or opinions of the experts on the other side and for its bearing on the genuineness or falsity of the memorandum, and the only force or value of this depended upon whether it corroborated or failed to corroborate the conflicting theories of the respective parties as to the main issue.

As indicated above sufficient corroboration of plaintiff’s contention is found to support the findings of the court if the memorandum had not been heard of on the trial. The error, therefore, cannot be fairly said to have influenced the result, and hence the judgment should not for that reason be reversed. (Post v. Brooklyn Heights R. R. Co., 195 N. Y. 62.)

There is also an appeal from an order denying the defendant’s motion for a new trial, based upon newly-discovered evidence. The new evidence is an admission against liis interest alleged by one of the expert witnesses for the defendant to have been made by the plaintiff and some new recollections of the defendant in corroboration of the admission. ■ The admission, if made at all, was made before the trial, and it is hardly a sufficient excuse to say that it was not used' there, because it had been forgotten, and the rules relating to new trials have never sancticned granting one, because a party who was sworn as a witness in his own behalf omitted to testify to something which, after an adverse decision, has been brought to his mind by a recollection refreshed. The alleged admission was made, if made at all, to a man who had been employed by the plaintiff, and who afterwards was employed and sworn as an expert for the defendant. Under such circumstances the admission would be looked upon with great suspicion and it could hardly be claimed that the evidence was of such a character or came from such a source that there would be a reasonable certainty of its changing the result on another trial.

We think the motion was properly disposed of at the Special Term, and that the judgment and order should be affirmed, with costs.

■ All concurred, except Kellogg, J., dissenting in memorandum.

Kellogg, J. (dissenting):

The record, discloses that the counsel upon both sides and the court very properly Considered that the case turned upon the question whether the memorandum of settlement had been changed by the plaintiff since it was written by the defendant. Two experts were called by the plaintiff and three by the defendant. Whether the word “ note ” had been erased by acids or otherwise and the word “ back ” substituted was by them deemed to be determined, to quite an extent, by the color of the ink and paper on and around the disputed word, and other words, and the effect of acids upon-different qualities of ink was a question of much interest and importance. It was^ therefore, clearly error to receive in evidence over the defendant’s exception extracts from Frazer’s book showing his views as to the effect of certain acids upon different inks. If the paper had been altered by the plaintiff, he is clearly not entitled to recover. The defendant’s liability is clear if the paper has not been changed. Aside from the paper itself it cannot be said that plaintiff has sustained the fair burden of proof which is necessary in order to entitle him to recover. The vital issue, therefore, was whether the paper had been altered and Frazer’s book was offered and received as evidence upon that subject. It was material evidence bearing directly upon the point in issue. I, therefore, favor a reversal of the judgment,

Judgment and order affirmed, with costs.