Wightman v. Campbell
| Decision Date | 21 March 1916 |
| Citation | 112 N.E. 184,217 N.Y. 479 |
| Parties | WIGHTMAN v. CAMPBELL. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Action by James C. Wightman against Thomas W. Campbell. From a judgment of the Appellate Division, affirming a judgment for plaintiff, and order denying new trial (161 App. Div. 49,146 N. Y. Supp. 666), defendant appeals. Affirmed.
James O. Sebring, of Corning, for appellant. M. A. Leary, of Penn Yan, for respondent.
Plaintiff, who is 86 years of age, brings this action in ejectment, claiming possession as tenant by the curtesy of about three-quarters of an acre of land on the west shore of Lake Keuka in Yates county, on which the defendant has erected a small cottage. The question is as to where the boundary line between the lands of the parties is located with reference to the present outlet of Basswood creek.
To answer that question it becomes necessary to locate the northeast corner of the farm of James Taylor by reference to the outlet of Basswood creek as it was in the year 1851. Plaintiff contends that Basswood creek then emptied into the lake. Defendant contends that the stream never emptied into the lake, but that it emptied, as it does now, into a basin some rods to the north of the point where plaintiff locates the former outlet.
Many witnesses were called on each side. The plaintiff's witnesses recalled distinctly the time when the creek ran into the lake and the defendant's witnesses, whose opportunities for observation were equally good, were certain that the creek never ran into the lake. The learned trial justice carefully instructed the jury how to test the credibility of a witness who speaks ‘of his boyhood days and what his young eyes then saw.’ He reminded them that human recollections vary and that they must determine from the evidence where the northeast corner of the Taylor farm was located in 1851. This they did by their verdict in favor of plaintiff. The judgment appealed from should be affirmed, but a statement of our reasons therefor seems proper.
[1] Appellant contends that the judgment must be reversed on the ground that material error was committed in receiving the evidence of Lorimer Ogden, a surveyor, who testified how he located the northeast corner of the Taylor farm as claimed by plaintiff, with the aid of certain field notes made in the year 1851 by Isaac Arnold, a deceased surveyor, who in his lifetime surveyed farms in Yates county and vicinity.
Plaintiff was permitted to prove without objection that Ogden had in the year 1885 correctly copied the original field notes of the Taylor farm produced by Arnold's son, and that the original book was lost or destroyed. No objection is made to the evidence as secondary or to the competency of the witness. Plaintiff then sought to have Ogden testify that he took the courses from Arnold's survey and ran them. The following question was asked and answered: Defendant's counsel then said: ‘We object to all that proof as incompetent, inadmissible and improper.’ The objection was overruled, and exception taken. Then, without further objection and without a motion to strike out either the answer, ‘Yes, sir,’ given before the objection was made or the answers following, Ogden testified how he had, with the aid of the notes, run the lines and located the disputed corner in accordance with plaintiff's claim.
1. When an objection is taken after the testimony is given a motion to strike out should be made (Link v. Sheldon, 136 N. Y. 1, 9,32 N. E. 696), and it is urged that defendant's failure to make such motion deprived him of the benefit of his exception. But the objection here was to further reference to the field notes by Ogden in giving his testimony, and the ruling clearly implied that the court would receive such evidence over defendant's objection and exception. The answer already given was in itself unimportant. A motion to strike out was therefore unnecessary, and the failure to make such motion was inconsequential. The objection pointed out generally that defendant objected to all of Ogden's testimony based on the notes, and it was sufficient to give defendant the benefit of his exception, if...
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...in a cause unless reasonably objected to as hearsay. See Wightman v. Campbell, 161 A.D. 49, 52, 146 N.Y.Supp. 666, affirmed 217 N.Y. 479, 112 N.E. 184, Cas. 1917E, 673. But the New York Court of Appeals has held otherwise in Dayton v. Parke, 142 N.Y. 391, 37 N.E. 642. But this hearsay testi......
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