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Westervelt v. Burns

Supreme Court, Appellate Term
Apr 1, 1899
27 Misc. 781 (N.Y. Sup. Ct. 1899)

Opinion

April, 1899.

Bennett Silverman, for appellant.

No other appearance.


This was an action on an assigned claim. The defense was payment. From the evidence the conclusion of the justice was fully warranted. There is but a single question of law presented for review, and it arises from a denial of the plaintiff's motion to strike out certain testimony. It having been introduced without objection, the disposition of the motion was within the sound discretion of the court. Miller v. Montgomery, 78 N.Y. 282; Murray v. Fox, 39 Hun, 108; affirmed, 104 N.Y. 382. A party against whom a witness is called and examined cannot, as was done in the case at bar, lie by and speculate on the chances, first learning what the witness testified, and then, when he finds the testimony unsatisfactory, object either to the competency of the witness or to the form or substance of his testimony. Quin v. Lloyd, 41 N.Y. 349. But even if the plaintiff had preserved his right by a seasonable objection, the motion to strike out could not prevail, as it was general in form and directed against testimony, part of which was entirely competent. Spaulding v. Hallenbeck, 35 N.Y. 204; McCabe v. Brayton, 38 id. 196.

The judgment must be affirmed.

FREEDMAN, P.J., and MacLEAN, J., concur.

Judgment affirmed, with costs to respondent.


Summaries of

Westervelt v. Burns

Supreme Court, Appellate Term
Apr 1, 1899
27 Misc. 781 (N.Y. Sup. Ct. 1899)
Case details for

Westervelt v. Burns

Case Details

Full title:GEORGE H. WESTERVELT, Appellant, v . THOMAS BURNS, Respondent

Court:Supreme Court, Appellate Term

Date published: Apr 1, 1899

Citations

27 Misc. 781 (N.Y. Sup. Ct. 1899)

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