Spatz v. Lyons

Ingraham, P. J. The decision of this appeal necessarily involves the validity of the exceptions taken on the trial. No cause is assigned by the justice for granting a new trial, and whatever would have been a sufficient ground for setting aside the verdict would justify the order appealed from. Had the evidence objected to been a conversation with the deceased immediately after the occurrence, it might have been admissible as part of the res. gestee. Even such conversations have been held inadmissible by some judges; but I know of no case in which conversations held the next day, with the injured party, have ever been received. The judge appears to have admitted it under the authority of Goodwin v. Hamson, (1 Root, 80;) but that case has not been sanctioned by our courts. The propriety of that ruling is not attempted to be sustained by the plaintiff’s counsel, in his points. It was not admissible as part of the res gestee, because it did not take place either at the time of the supposed injury or immediately after. In fact [478] it was not until the next day, when the plaintiff and his wife had been out in search of the person upon whom to charge the assault; and this statement was made after they had seen the defendant. Nor was it admissible as the dying declarations of the deceased, because such declarations are only admissible in cases of trial for the homicide of the party making them, and then only where the person was acting under a full conviction that- the wound was mortal, and that death would speedily ensue. The ground suggested, that it was a matter of necessity, because no other proof could be procured, has never yet been considered in this State a sufficient ground for admitting hearsay evidence for such a purpose as this. It is admissible in cases of pedigree, and for proving matters connected with titles to land of a period anterior to that of any living witnesses, but that rule would not sanction its admission ■ from necessity, in an action to prove an assault committed a short time previous, even though the party assaulted had since died. It is urged on the part of the plaintiff that as the justice refused to dismiss the complaint on the trial, therefore he should not have set aside the verdict as against evidence. It does not appear from the ease on what ground the motion was granted. He may entertain such a motion on his minutes, either on exceptions, or for insufficient evidence, or for excessive damages. If for either of these reasons he is satisfied that he erred on the trial, it- is his duty to grant the motion. I think it very clear that the evidence of the wife’s declarations should not have been admitted; that the judge should have stricken out that evidence when so requested; that there was no other evidence on which the verdict could be sustained; and that the verdict was- properly set aside and a new trial ordered. The order appealed from should be affirmed, with costs.