Lant v. Rasines

Daly, P. J. The rule with respect to questions'put to expert witnesses on the subject'of value is, as stated by Judge Gray, in Link v. Sheldon, 136 N. Y. 1, “An expert witness should be confined to questions which contain in themselves the facts assumed "to be proven upon which his opinion is desired.” There is an ex-, ception to the rule, and that is where the testimony of a single witness is called to the attention of the expert- arid he is asked a . question, based upon the testimony of that witness. It is there the same as if the testimony had been read over to him and embodied' in the question. That, was the case of McCollum v. Seward, 62 N. Y. 316, where thé expert was asked: “ What were his services hs he, the plaintiff, described them worth?”, and the case, of Seymour v. Fellows, 77 N. Y. 178, when the query was: “ What, in your opinion, was the value of the services which Mr. Seymour stated he rendered? ” and the case of Miller v. Richardson, 88 Hun, 49, where the court said: “ There was no error in the reception of the evidence offered to prove the value of the services performed by the plaintiff as described by the'testimony of .another witness.” This case is not within the exception to the rule.' -The plaintiff having [333] given testimony which covers a large number of folios, an expert is called and asked this question: Q. “ Have you heard all the testimony in this suit? A. Most of it.” And is then asked: Q. ‘‘ Can you answer my question now, and give as an estimate, from what you have heard of the testimony, what these services were reasonably worth? ”' The jury could not possibly know what was in the witness’ mind. He did not say: ■ “ I have heard the testimony of the plaintiff, and from what he stated, his services were worth so much; ” he only professed to speak from what he had heard of the testimony, and we do not know whether that excluded the more important parts of it, or not. It is impossible to sustain that question without extending the exception to the rule further than the Court of Appeals, or the Supreme Court, has been willing to go; and, perhaps, without destroying the rule. Judgment reversed, new trial ordered, with costs- to appellant of appeal in this court and the court below and of the former trial to abide event. Bischoff and McAdam, JJ., concur. Judgment reversed and new trial o rdered, with costs of appeals and of former trial to appellant to abide event.