Brockett v. New Jersey Steam-Boat Co.

Coxe, J. For reasons stated at the argument the court would not have been justified in directing a verdict for the defendant. There was, upon the main issue, a disputed question of fact, which could not properly have been withdrawn from the consideration of the jury. The questions objected to, affecting the character of the witness Thiel, were, I think, proper on cross-examination. Real v. People, 42 N. Y. 270. Criticism is made that the declarations of the assistant mate were incompetent. That part of the testimony, however’, to which the attention of the court is particularly directed as being prejudicial to the defendant, was admitted before any objection or exception was taken. But in any view of the case I am of the opinion that what was said by an officer of the vessel, during the altercation, was admissible as part of the res gestee. Curtis v. Railroad, 49 Barb. 148. Two of the exceptions argued relate to the refusal of the court to strike out certain evidence which was not objected to when offered. Without discussing the question whether the evidence should have been received, had a timely objection been interposed, it is sufficient to say that the rule is well settled that a refusal to strike out, in such circumstances, is not error. Gawtry v. Doane, 51 N. Y. 90; Levin v. Russell, 42 N. Y. 256; Plainer v. Plainer, 78 N. Y. 90. I have examined the other exceptions referred to in defendant’s brief, but think none of them well taken. The motion for a new trial is denied. Footnotes [1] Affirmed. See 7 Sup. Ct. Rep. 1039.