Smith v. Paine

• Decision Date: 06 October 1925
• Citation: 130 A. 371
• Parties: SMITH v. PAINE.
• Court: New Jersey Supreme Court

130 A. 371

SMITH

v. PAINE.

Supreme Court of New Jersey.

Oct. 6, 1925.

Appeal from District Court, Morris County.

Action by Melvin Gray Smith against John Overton Paine. From a judgment for plaintiff, the defendant appeals. Affirmed.

Argued May term, 1925, before PARKER, MINTURN, and BLACK, JJ.

Edward A. Walsh, of Boonton, for appellant.

Leone Cone, of Morristown, for appellee.

PER CURIAM. The case exhibits no "specification of the determinations or directions of the district court with respect to which appellant is dissatisfied in point of law" as required by rule 145, formerly rule 90. As there is no error assigned, the judgment might be affirmed (Champlin v. Barthold, 82 N. J. Law, 13, 81 A. 490), or the appeal dismissed (Sentliffer v. Jacobs, 84 N. J. Law, 128, 86 A. 929; Galvin v. Ostrander Co., 84 N. J. Law, 530, 87 A. 84).

But, inasmuch as this appeal has been greatly delayed by some oversight in perfecting its presentation, we have deemed it advisable to look at the merits as set forth in appellant's brief. The first point stated (but not argued) is that the testimony of plaintiff as to his price per day for a team of horses and a man was inadmissible. We fail to see why it was. Next, that the testimony of Saxe was hearsay. This objection was not made at the trial, and moreover his testimony was opinion evidence and not hearsay. It bore on the fair value per day of a team and man. The third point is that the preponderance of evidence showed defendant had settled in full with plaintiff, and the fourth, that the finding is against the weight of evidence. It is elementary in these district court appeals that the judge's findings of fact will not be disturbed if there is any evidence to support them; and in this case there was ample evidence.

The judgment will be affirmed.