Meyer v. Goedel

By the court, Ingraham, P. J. It is proper to remark that in this ease no motion was made for a new trial upon the facts, or for any cause whatever arising upon the evidence, and we are here confined entirely to the exceptions taken upon the trial. First, to the refusal of the court to open the case after it had been summed up to the jury, for the purpose of admitting testimony to disprove any supposed fraud in the sale of the interest in the saltpetre company; and secondly, to the charge of the judge, that the jury might take the evidence in the case on that subject into consideration on the question of intent. The propriety of the course adopted on the trial of non-suiting, as to one count or cause of action in a complaint, and continuing the action as to the other, is at least of doubtful propriety. The result in this case shows its impropriety, and may work injustice to the party. In this case the granting such a motion left all the evidence in the cause relating to this branch of the case before the jury, while the defendant, by the dismissal, may have supposed the testimony on that subject immaterial and omitted to contradict [462] or explain it. He had, however, a perfect remedy if he had seen fit to apply it, viz : to move the court to strike out the testimony relating to that branch of the case. Such a motion would have, disclosed at once whether the plaintiff intended to use that evidence as he afterwards, claimed to do, and he would have had an opportunity to offer any rebutting testimony. This he omitted to do. So 'also he might, after the trial, have moved the court for a new trial, on the ground of surprise, and might have obtained relief in that form. The first exception co the counsel being allowed to comment on this evidence to the jury, is not well taken. The evidence was taken in the case and had not been stricken out. It was offered generally in the cause, and so received, although applicable more especially to the second cause of action. There was no error in allowing the counsel to use such evidence for the purpose stated, viz: to show the criminal intent of the defendant. The principle is too well settled to require the citation of authorities to show that in an action for fraudulent misrepresentations, other cotemporaneous acts of fraud of a similar character may be given in evidence for such a cause. The court could not properly prohibit the counsel from calling the attention of the jury to any evidence before them, or from using such evidence for this purpose. The fact of the declaration of the judge, that he did not consider this cause of action sustained, did not have the effect to remove the evidence from the case, and I think he committed no error in this ruling. Nor did the judge err in refusing to open the case and admit evidence after the summing up to the jury was through. As before suggested, he might for that reason, if a proper case of surprise had been shown, have granted a new trial on terms, but that was in both respects a matter of discretion with the judge, to which no exception can be taken. His refusal to admit further evidence, has never so far, as I recollect, been considered a good ground for excepting, nor has the admission of evidence under such circumstances. [463] There are various cases to show that such is matter of discretion. Thus, where the court intimates to the defendant’s counsel, that in his opinion it is unnecessary to examine witnesses for defense, and the jury found for plaintiff, a new trial was refused (Beekman agt. Bemas 7 Cow. 30); so, where the judge in recapitulating testimony was, as alleged by defendant’s counsel, in error as to facts, his refusal to recall and examine the witness again, was held to be a matter of discretion, and not reviewable (Shepard agt. Potter, 4 Hill, 202). So a permission or refusal to recall a witness for re-examination, after his examination has been finished, is a matter of discretion not to be reviewed (Meakim agt. Anderson, 11 Barb. 215). So, where after the counsel had rested he discovered new evidence, and offered to produce it, which was refused by the judge, the court held it to be discretionary. (Ford agt. Niles, 1 Hill, 300; Alexander agt. Byron, 2 Johns. Cas. 318.) In Mercer agt. Sayer (7 Johns. 308), the court held in such a case that it was a matter of discretion in the judge to admit or refuse the evidence, but as he refused it upon the ground that he had no power to do so, it was held erroneous. It is not intimated, however, that his discretion, if exercised, would have been reviewed. From all these cases I conclude that the decision of the court in this case was within the discretion of the judge, and there is nothing that warrants the granting a new trial therefore. The remaining question is as to the charge of the judge, that the jury might consider this evidence. I have already remarked that it was before the jury as all the other evidence in the cause, and nothing had been done by the defendant to exclude it from the consideration of the jury, that it was a species of evidence which might be used for the purpose suggested by the court, and that the omission of the defendant to contradict it on the trial was no reason for excluding it from the jury. The exception to the charge therefore, in this respect, was unavailing. That the defendant might [464] have succeeded on a motion for a new trial is probable, but it does not come within the province of the appellate court on a bill of exceptions to grant it. The judgment should be affirmed.