Mandlebaum v. Liebes

By the Court, Belknap, J.: The judgment and order overruling appellant’s motion for a new trial are sought to be reversed upon the grounds, first, of insufficiency of the evidence to justify the decision, and that it is against law; and, second, of error in law occurring at the trial. The first point cannot be considered, because the statement does not purport to contain all of the evidence. The second point arises upon the exclusion of testimony offered by the plaintiff. Subsequent to the ruling excluding the testimony, and during the trial, the objection to the testimony was withdrawn. It is unnecessary to review this ruling. Assuming that it was erroneous, the error was.cured by the withdrawal of the objection. It is true, as claimed by appellant, that the record does not affirmatively show that the witness by whom plaintiff offered to prove the rejected testimony was in court at the time of the withdrawal, or afterwards during the trial; but it states that plaintiff£ £ did not thereafter offer to avail himself of the testimony of Boskowitz pertaining to said contract.” Conceding proper care to the attorneys of the jDlaintiff who prepared the statement, and to the judge who settled it, we conclude that plaintiff had an opportunity to avail himself of the testimony. If the language employed is not capable of this intendment and no other, it is unmeaning and trifling. [133] It is said in behalf of appellant that it may have been beyond his power to have produced the witness after the with-drawal of the objection. If such weie the fact, appellant .should have shown it, and should have asked for a postponement of the case to such reasonable time as would have enabled him to have procured the attendance of the witness. The judgment and order of the district court are affirmed.