Comins v. . Hetfield

Millee, 1 J. The testimony introduced by the plaintiff to prove that the bridge and trestle-work were in use by the railroad company, and have been since the railroad was completed, and that no objection was ever made by the defendants, or by I. V. Baker, to whose satisfaction the work was ■to be done was properly received. The acceptance by the railroad company, without any objection by its officers or its superintendent, Mr. Baker, was competent, to show that the work was properly done and satisfactory. There was evidence upon the trial that the plaintiff had conversed with the defendants and with Baker about the bridges, and if he (Baker) had no objection either to the work or the materials, it tended stronsdy to show that the contract had been ful- . filled. ' The account, to the introduction of which objection was made, was not received as evidence, but merely as a memorandum explaining and pointing the plaintiff’s testimony. It did not relate to a personal transaction between the plaintiff and the defendant Culver, who was deceased, but could only have been a statement of the plaintiff of his demand. We see no objection to thus stating in writing the character of the plaintiff’s claim, and in allowing the plaintiff to refer to the same in giving his testimony. As, however, the paper referred to is not incorporated in the printed case, and its *267 real character cannot be ascertained, the question raised is not presented upon this appeal. The motion to strike out the testimony of the plaintiff in his own behalf, taken prior to the decease of the defendant Culver, was properly denied. The death of Culver, after the testimony had been given and before it was completed, would not justify the striking out of the testimony which had already been taken. Section 399 of the Code has no application to such a case, and cannot be invoked to sustain the motion. The testimony being entirely competent when it was admitted, and the plaintiff entitled to the benefit to be derived from the facts sworn to, the subsequent death of one of the defendants would not render it inadmissible. The disqualification of the witness depended entirely upon the facts as they existed when he gave his testimony, and not upon any change which subsequently occurred before the examination was completed. Nor was there any error in allowing the plaintiff to testify that he had the diagram for one of the bridges furnished by the defendants. The plaintiff did not recollect from whose hands he received the diagram, and was not able to say it had not been received from the defendant Culver. He did testify, however, that he made use of the diagram in the presence of the defendant’s engineer, or in the presence of the defendant Hotfield. It was not shovra that it came from defendant Culver, who was dead, and hence the objection that the evidence involved a conversation had with the deceased defendant personally, founded upon the provisions of section “399 of the Code, was not available. If he made use of it in the presence of Hetficld, the other defendant, he could have been called to contradict the plaintiff; and hence the evidence was not objectionable for that reason. Where the transaction was with a defendant who was living, it is not incompetent evidence because the other defendant is deceased. It does not appear in what way the diagram was used by the plaintiff, or in -what manner that fact would prejudice the defendants’ rights; and therefore the testimony was not important. *268 The referee committed no error in refusing to strike out the testimony of the witnesses named by the defendants’ counsel. It was no sufficient ground for granting the motion because the plaintiff’s examination had not been completed ; and as to.the alleged irregularity in the adjournment.of the case, that had been the subject of a motion at Special Term, which had been decided against the defendants, and was therefore disposed of. The claim that there was a mistrial, because of the proceedings of the referee without an adjournment, also involved a question of irregularity, and was a subject of consideration and decision upon the motion referred to. It is not, therefore, reviewable upon an appeal from the judgment. There is no ground for claiming that no cause of action was proved against the defendants. The referee found in favor of the plaintiff; and we think the testimony sustains his findings. The evidence showed that the work was accepted, and no objection made by the defendants or by the superintendent of the road, Mr. Baker. No motion was made for a nonsuit upon the trial, and no objection to the insufficiency of the evidence upon the question of approval. The objection should have been pointed out, so as to allow the plaintiff to introduce additional testimony, if he desired to supply the alleged defect. As this was not done, the point does not arise upon this appeal. It does not appear from the appeal book that the point was made upon the trial, that the plaintiff could not recover1 because forty per cent of the amount was to have been paid in the Rensselaer and Saratoga railroad bonds, and that no demand for them had been made by the plaintiff; and that question is, therefore, not now presented. These views' dispose of all the questions raised upon the appeal from the judgment. The record also brings up for review the order of the Special Term denying the motion to set aside the referee’s report, and the judgment, and to vacate the order of reference. We think the motion was properly disposed of by *269 the Special Term. So far as the proceedings before the referee are concerned, they involved a question which was addressed to the discretion of the referee, and his decision in this respect cannot be reviewed here. It is proper, however,: to remark ' that we are unable to discover anything which was irregular, or which reflects, in any way, upon the conduct of the case before the referee and the orderly and proper administration of the law. The order appealed from, and the judgment, should be affirmed, with costs upon each appeal. All concur, except Rapallo, J,, absent at argument. Judgment and order affirmed.