Hunter v. Batterson

Freedman, P. J. In excluding the defendant’s proposed evidence as to the fraud by means of which he was induced to make and deliver to E. P. Schmidt the check sued upon, the trial judge clearly erred. The defendant’s answer,, after denying in some form or other all of the material allegations of the complaint except the making of the check, alleged as a distinct defense that the said check had been obtained from him by the said E. P. Schmidt by means of false and fraudulent representations. At the trial no point was made that said defense was insufficiently pleaded because the facts, constituting the alleged false and fraudulent representations, had not been sufficiently set forth. If the question had been specifically raised, the defendant might have obtained relief in some way. But it was not raised, and the defense was treated by both court and counsel as sufficiently pleaded. Moreover, the question does not appear to have been presented to the.General Term of the Oity Court of New York. Under these circumstances, the point should not be seized by this court for the [481] purpose of reversing the determination of the General Term' of the City Court. The rule is well settled that where a party seeks to rely upon a defect in the pleadings which renders it improper to receive evidence, relating to a defense or cause of action sought to be established, it is necessary to call the attention of the court to the defect, and a mere general objection will not raise any such question. Numerous authorities might be cited in support of this rule, but a reference to Menke v. Gerbracht, 75 Hun, 181, is quite sufficient. Another rule equally well settled and supported by authorities too numerous to be mentioned is, that an appellate court, in examining the question whether a ruling of the court below on an objection to evidence is correct or not, will not consider any other grounds of objection to the evidence, than those urged in the court below. By particularizing an objection, the other party may be thrown off his guard, and hence the objecting party must stand upon the ground taken at the trial. Defendant’s proposed evidence as to the fraud practiced upon him in obtaining the check from him was excluded on the specific objection, sustained by the trial judge, that such evidence was immaterial unless knowledge or notice was brought home to the plaintiffs, and that the defendant stood precluded from giving proof of such knowledge or notice because he had not pleaded it.This ruling cannot be sustained. Knowledge of a fact cannot well be established before it is shown what the fact was. Moreover, under the denials of the answer and the plea of fraud set up therein, the defendant had a clear right to prove any fact showing or tending to show that the plaintiffs, on obtaining the check from E, -P. Schmidt, did not become bona fide holders for value paid on the faith thereof, and by means thereof to cast, jf he could, the burden upon the plaintiffs to establish by a preponderance of evidence that after all they were bona fide holders for value, which burden they could only discharge by establishing that they paid full value on the faith of the check and that they had no knowledge or notice of the fraud. Nickerson v. Ruger, 76 N. Y. 279; Vosburgh v. Diefendorf, 119 id. 357. For the foregoing considerations, the General Term of the 'City Court was right in reversing the judgment based upon the verdict directed by the trial judge in favor of the plaintiffs and in ordering a new trial, and consequently the judgment and order should be affirmed, with costs, and judgment absolute should be rendered [482] against the plaintiffs and in favor of the defendant upon the stipulation contained in the notice of appeal, with costs to the defendant in all the courts. Levemteitt, J., concurs.