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HINTS
FOR FORENSIC PRACTICE:
A MONOGKAPH
OX CERTAm RULES APPERTAINING
TO
THE SUBJECT OF JUDICIAL PROOF.
Br
Theodore F. C. Demarest,
A.B., A.M., COLUMBIA : LL.B. : BDITOE OP N. Y. SUBROGATE
REPORTS. AUTHOR OF A TREATISE ON ELEVATED RAIL-
ROAD law; a study of the ABENDROTH case, ETC.
" Reason is the life of the law, nay, the ccimmon law itself is
nothing else but reason The law, which is perfection of
reason." COKE, Inst.
"To whomsoever, with other than a professional eye, it can
have happened to take up a book on the subject of evidence, be
the book what it may, it can scarcely have been long before he saw
more or less reason to suspect that, in the formation of the mass of
rules of which he found it composed, the share taken by that fac-
ulty whicli, when applied to other subjects, goes by the name of
reason must have been small indeed." BENTHAM, Introd. to
Rationale of Jud. Evidence.
"Medio tutissimus ibis." OVID, Metara.
THE BANKS LAW PUBLISHING COMPANY,
21 MURRAY STREET,
New Tokk.
1905.
"8 77^3
Copyright 1905
By The Banks Law PuBLisHiNa Company.
INTRODUCTORY.
"Objected to, as incompetent, irrelevant and
immaterial."
This particular objection, to the introduction
of evidence, was taken twenty-seven times on the
trial of the action reported in 129 N. Y., at page
252; twenty-two times in the case in 149 N. Y.,
154; twenty-two times in 173 N. Y., 549; nine
times in 128 N. Y., 571; and three times in 179
N. Y., 24. An echo from the Pacific coast is heard
in 46 CaL, 397.
In the celebrated action reported in 90 N. Y.,
122, the distinguished counsel, who officiated at
the trial, totally abstained from the use of this
formula, and, in eighteen instances, expressed
their opposition, to evidence offered, by the first
two words ("objected to") of the foregoing quo-
tation, — a mode of objection which they may
have considered equally expressive and effectual.
Its resonant euphony, and an air of erudition,
not altogether dissociated from obscurity, which
pervades this tripartite specification, probably
serve to recommend it to the advocate, who,
i
11 INTRODUCTORY.
though reasonably sure that he would rather dis-
pense with particular, proposed evidence, is not
prepared, on the spur of the moment, accurately
to state the reasons why his preference should be
gratified.
In one case, counsel proved himseK equal to
the feat of doubling the galaxy, his rotund pro-
test being, that evidence offered was "incompe-
tent, irrelevant, immaterial, impertinent, inad-
missible and improper." He might have added,
"illegal, injurious and intolerable."
The opinions of the Courts teem with admo-
nitions, to counsel, of the desirability of being
specific in their statements of the grounds upon
which they oppose the introduction of evidence,
on trials, and advising of the serious consequences
likely to ensue from a deficiency in that respect.
Is the triple, rhythmical alliteration, to which
reference has been made, amenable to criticism,
as lacking such requisite quality?
Again, there are decisions of high authority,
apparently holding that counsel may, under cer-
tain circumstances, sit silent at the time when his
opponent offers testimony or documents, without
precluding himself from subsequently avoiding
the effect of the evidence, if admitted and deemed,
by him, to be harmful to his case.
In what manner is this privilege, or possibihty,
to be reconciled with the admonitions mentioned,
and with what is believed to be a more or less gen-
INTRODUCTORY. lU
eral impression, that the best, if not the only avail-
able, time to start opposition to the allowance of
evidence is when the adverse counsel seeks its
admission, if the ground of objection be then
apparent?
An effort to discover and explore the legal prin-
ciples underlying these and allied queries was
the occasion of setting down what is submitted to
the reader in the following lines.
TABLE OF CONTEOTS.
PAGE
Copyright Page
Introductory i-iii
Table of Contents v
Table of Cases, etc vii-x
Table of Treatises, etc xi
Section 1. Of certain elementary terms . . 1-34
Evidence 1-10
Issue 10-12
Objection 12-15
Four plights of objections . . . 15-22
General objection sustained . 15, 16
General objection overruled . 16-18
Specific objection sustained . 18-20
Specific objection overruled . 21, 22
"Incompetent," "Irrelevant," "Im-
material " : meanings . . . 23-34
Etymological indications ... 23, 24
Lexicographic suggestions . . 24-26
Text-writers' definitions . . . 27-30
Judicial definitions 31-34
Section 2. Cases, adjudicating upon objections. 35-77
Section 3. Striking out, and disregarding evi-
dence 78-105
Section 4. Motions to direct, and to set aside,
verdicts 106-115
Index 117-123
V
TABLE OF CASES CITED IN THIS VOLUME.
PAGE
Acetta V. Zupa, 54 App. Div., 33, 34 58
Adams v. Burr, 13 Misc., 247, 249 63
Adams v. Lloyd, 3 H. & N., 351, 361 31
Am. Bank Note Co. v. N. Y. El. R. R. Co., 129 N. Y., 252
Asbestos Pulp Co. v. Gardner, 39 App. Div., 654 43
Atkins V. Elwell, 45 N. Y., 753, 756 32, 44
Bergmann v. Jones, 94 N. Y., 51, 58 65
Brown V. Third Ave. R. R. Co., 19 Misc., 504 50
Charlton v. Rose, 24 App. Div., 485, 487 42
Christensen v. Met. St. R'y Co., 137 Fed. Rep., 708. . 114
Cohn V. Mayer Brewing Co., 38 App. Div., 5, 6 107
Cole V. Boardman, 63 N. H., 580 31
Cook V. New Durham, 64 N. H., 419, 420 2
David Bradley Mfg. Co. v. Eagle Mfg. Co., 57 Fed.
Rep., 980 33
Dean v. ^tna Life Ins. Co., 2 Hun, 358, 368 97
Dedric v. Hopson, 62 Iowa, 562 33
Delaney v. Hilton, 50 N. Y. Superior, 341, 344 100
Dodge V. Cornelius, 168 N. Y., 245 21
Emery v. Baltz, 94, N- . Y., 408, 414 41
vii
VIU TABLE OF CASES CITED.
PAGE
Fealey v. Bull, 163 N. Y., 397 109, 113
Fox V. Erbe, 100 App. Div., 343, 348 67
Frankel v. Wolf, 7 Misc., 190, 192 59
Gawtry v. Doane, 51 N. Y., 84, 89 81, 96
Glenville v. St. Louis R. Co., 51 Mo. App., 629, 631 ... . 60
Groh's Sons v. Groh, 80 App. Div., 85, 94 69
Groh's Sons v. Groh, 177 N. Y., 8, 14 71
Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100 94
96, 97, 98, 100, 101, 103, 104
Hemmens v. Nelson, 138 N. Y., 517, 529 106, 108, 110
Hine t;. N. Y. El. R. R. Co., 128 N. Y., 517 i
Hine i;. N. Y. El. R. R. Co., 149 N. Y., 154 i
Holcombe v. Munson, 1 Silv., Ct. of App., 228, 233 14
Horbach v. State, 43 Tex., 242 32
Hubbell V. United States,. 15 Ct. of Claims, 546, 606. . . 3
Huber v. Ehlers, 76 App. Div., 602, 605 51
Jackson v. Jackson, 100 App. Div., 385, 388 61
James v. Ford, 30 State Rep., 667, 670 39
Jenks V. Thompson, 179 N. Y., 20, 24 i, 54
Jewel. Mer. Agency v. Jewel. Pub. Co., 84 Hun, 12, 19 . .91
Levy V. Campbell, 20 S. W. (Tex.), 196 . 32
Linkauf v. Lombard, 137 N. Y., 417, 426. . . .106, 108, 109
McCloskey ■;;. Davis, 8 Ind. App., 190, 197 55
McDonald v. Met. St. R'y Co., 46 App. Div., 143, 146, 147 107
McDonald v. Met. St. R'y Co., 167 N. Y., 66 110
McKeon v. See, 51 N. Y., 300, 305 14
TABLE OF CASES CITED. IX
PAGE
McLoghlin v. Nat. Mohawk Vail. Bank, 65 Hun, 342, 348 48
McLoghlin v. Nat. Mohawk Vail. Bank, 139 N. Y., 514,
522, 523 8, 49
MacKinstry v. Smith, 16 Misc., 351, 354 51
Marks v. King, 64 N. Y., 628, 629 84, 86, 88
Matter of Accounting of Morgan, 104 N. Y., 74, 86. .89, 102
Mead v. Bunn, 32 N. Y., 279 16
Mead v. Shea, 92 N. Y., 122, 127 46
Miller v. Montgomery, 78 N. Y., 282, 286 82
Muhlker v. N. Y. & H. R. R. Co., 173 N. Y., 549 i
Neilson v. Mayor, etc., of N, Y., 1 Silv., Supr. Ct., 471,
484 101
New Orleans, etc., R. R. Co. v. Moye, 39 Miss., 374, 385 21
Ohio, etc., R. Co. v. Walker, 113 Ind., 196, 200. .. . 13, 15, 60
Pangbum ■;;. State, 56 S. W. (Tex.), 72 33
People V. Manning, 48 Cal., 334 33
Platner v. Platner, 78 N: Y., 90 31, 86, 188
Plum V. Met. St. R'y Co., 91 App. Div., 420, 422 103
Pohalski v. Ertheiler, 18 Misc., 33, 35 92
Pontius V. People, 82 N. Y., 339, 346 87
Porter V. Valentine, 18 Misc., 213, 215 14, 32, 33
Quin V. Lloyd, 41 N. Y., 349, 354 79, 102
Roberts v. Johnson, 37 N. Y. Superior, 157, 160 96
Rush V. French, 1 Ariz., 99, 125 13
Ryan v. Town of Bristol, 63 Conn., 26 32
Shaw V. Shaw, 1 Dem., 21, 24 98
X TABLE OF CASES CITED.
PAGE
Shea V. Mabry, 1 Lea (Tenn.), 319 32
SheUey's Case, 1 Coke Rep., 946 8
Slocovich V. Orient Mut. Ins. Co., 108 N. Y., 56, 64. . . . 66
StaU V. WUbur, 77 N. Y., 162 12
Sterrett v. Third Nat. Bank, 122 N. Y., 659, 662 14
Stouter V. Man. R'y Co., 127 N. Y., 661, 664 14
Story V. N. Y. El. R. R. Co., 90 N. Y., 120 i
Taylor v. N. Y. C, etc., R. R. Co., 63 App. Div., 586, 588 37
Tooley v. Bacon, 70 N. Y., 34 15, 16, 17, 18, 65
Tozer v. N. Y. C. & H. R. R. R. Co., 105 N. Y., 617, 659 64
Turner v. Qty of Newburgh, 109 N. Y., 301, 308 ... . 63
Tuttle V. Hannegan, 54 N. Y., 687 12
U. S. Vinegar Co. v. Schlegel, 143 N. Y., 537, 544 90
Voorman v. Voight, 46 Cal., 392, 397 , i, 57
Voss V. State, 9 Ind. App., 294 56
Wallace v. Vacuum Oil Co., 128 N. Y., 579, 581 47
Ward V. Kilpatrick, 85 N. Y., 413 21, 22
Wilder v. Accident Association, 14 State Rep., 365, 367 38
Witherow v. Slayback, 158 N. Y., 649, 662. 52
TABLE OF TREATISES, ETC., CITED IN THIS
VOLUME.
PAGE
Abbott, Law Dictionary 24
Anderson, Law Dictionary 24
Bentham, Rationale of Judicial Evidence 2, 6
Best on Evidence 2, 4
Blackstone, Commentaries 3, 11
Bouvier, Law Dictionary 25
Bradner on Evidence 30
Burrill, Law Dictionary 25
Century Dictionary 23, 24
Cyclopedic Dictionary 24
Greenleaf , on Evidence 3, 30
Jones on Evidence 29
Murray, New English Dictionary 23
Reynolds, on Evidence 29
Solicitor's Journal 6
Stephen, Digest of the Law of Evidence 1, 5, 28
Stephen on Pleading 11
Taylor on Evidence 29
Wharton on Evidence 12, 28
Wigmore on Evidence 3, 4
Words and Phrases Judicially Defined 3
xi
HINTS FOE FORENSIC PRACTICE.
SECTION I.
Of Certain Elementary Terms.
A feature of the phrase, "incompetent, irrelevant
Negative and immaterial," which attracts imme-
character (jj^^g attention, is the negative quality
evidence of each of the three component words,
rules, arising from the common presence of
the initial, inseparable preposition of privation,
a peculiarity which recalls a complaint of Mr.
Justice Stephen, that "the great bulk of the law
of evidence consists of negative rules, declaring
what, as the expression runs, is not evidence."^
The particular subject, in hand, belongs to the
practical side of the law of evidence, and its dis-
cussion presupposes an apprehension of the nature
and methods of what may be termed the Anglican
system of adducing forensic proofs, and an appre-
ciation of the true import of certain terms.
1 Dig. of Law of Ev., introd.
2 CERTAIN ELEMENTARY TERMS.
Evidence. — This term, as might be expected,
Best's defl- has been copiously and variously defined.
nitionof "The word evidence" (evidentia) "sig-
nifies, in its original sense, the state of
being evident, i. e., plain, apparent or notorious.
But by an almost peculiar inflection of our lan-
guage, it is applied to that which tends to render
evident, or to generate proof." ^
"Evidence is a word of relation .... By the
term .... seems in general to be understood
Benthain's any matter of fact, the effect, tendency
definition or deslgu of which, when presented to
of evidence. . i • i « ■ i
the mmd, is to produce a persuasion
concerning the existence of some other matter of
fact — a persuasion either affirmative or disaffirm-
ative, of its existence." ^ This broad and liberal
definition is quoted in Cook v. New Durham.^ The
proposition contained in the first clause of the
foregoing quotation is emphasized by a recent
writer, who says: "Evidence is always a relative
term. It signifies a relation between two facts,
the factum probandum, or proposition to be estab-
lished, and the factum probans or material evidenc-
ing the proposition.^ . . . No correct and sure
I Best on Ev., §11. two facts to be considered: — 1.
^Benth., Rationale of Jud. Evi- The factum probandum, or say, the
dence, bk. 1, ch. 1. principal fact — the fact the exist-
'64 N. H., 419, 420; 1887. ence of which is supposed or pro-
* Conf. Bentham: " In every posed to be proved — the fact evi-
case, therefore, of circumstantial denced to — the fact which is the
evidence, there are always at least subject of proof; — 2. the factum
DEFINITIONS OF EVIDENCE. 6
comprehension of the nature of any evidential
question can ever be had unless this double or
relative aspect of it is distinctly pictured." *
Blackstone defined evidence as "that which
Biackstone's demoustrates, makes clear or ascertains
definition the truth of the very fact or point in
of evidence. - * ,t •! ii ji j>9
issue, either on one side or the other. ^
According to a later writer, "the word evidence,
in legal acceptation, includes all the means
by which any alleged matter of fact, the
definition '' , • i • i ■ i ■ ■
of evidence truth of which IS Submitted to investiga-
tion, is established or disproved."^
This definition has had great vogue. A number
of judicial opinions, in which it has been cited or
quoted, are mentioned in a recent encyclopedic
work.*
"Evidence, in its narrow and technical sense,
is a machine for the discovery of truth,
couifs fettered and restrained by municipal law
definition q^^^ \)j local regulatlous, which vary
of evidence. .-t • t nr i j_' jjk
greatly in different countries. ^
This group of definitions will be concluded by
wigmoie'8 giving the learned and elaborate defini-
definition .. t* < ^ I'lii xx
^j tion of evidence, laid down by a text-
evidence, writer already cited: "Any knowable fact
probans — the evidentiary fact — the 23 Comm., 367.
fact from the existence of which sQreenl. on Ev., §1.
that of the factum probandum is * Words & Phrases Jud. defined,
inferred" (Rationale of Jud. Ev., 2522; 1904.
bk. 5, ch. 1). 5 Hubbell v. U. S., 15 Court of
1 1 Wigmore on Ev., 5; 1904. Claims, 546, 606, Dissent.; 1879.
4 CERTAIN ELEMENTARY TERMS.
or group of facts, not a legal or a logical principle,
considered with a view to its being offered before
a legal tribunal, for the purpose of producing a
conviction, positive or negative, on the part of the
tribunal, as to the truth of a proposition, not of
law or of logic, on which the determination of the
tribunal is to be asked." ^
From the foregoing, it is clear that judicial
Judicial evidence, with which alone we have now
evidence to do, Is a spccies of a genus. It has
a species, j^ggj^ descrfbed as natural evidence, re-
strained or modified by rules of positive law, some
of which are exclusionary and others investitive.^
The same author indicates the character of the
latter class of rules, thus: rules "investing natural
evidence with an artificial weight, and even in
some instances attributing the property of evi-
dence to that which, abstractedly speaking, has no
probative force, at all." ^
The relation of logic to judicial evidence is un-
Eeiation of doubted aud intimate. The Anghcan law
logic to of evidence may be said to consist of an
evidence, application of the unalterable principles
of logic, with exceptions, from the ordinary results
of applying the same, originating in a concern for
the social safety or utility, and in considerations of
feasibility of judicial administration, many of the
latter being distinctively grounded in the regard
1 Wigmore on Ev., 3; 1904. 3 md.
2 Best on Ev., § 34.
DEFINITIONS OF EVIDENCE. O
of the Courts for the consecrated right of trial by
jury. The exceptions so estabUshed are, undoubt-
edly, in the main exclusory; wherefore, the chief
task of the logician, entering the legal domain, is
to appreciate, correlate and memorize the excep-
tional exclusions.
Mr. Justice Stephen, contemplating these ex-
„, , , ceptions, exclaimed that he found him-
Stepnen's s^ '
iiiuatiation Self lu "the posltlou of a person who,
of negative j^gyer havlng seen a cat, is instructed
about them in this fashion: 'Lions are not
cats, nor are tigers nor leopards, though you might
be inclined to think they were.' Show me a cat,
to begin with, and I at once understand what is
meant by saying that a lion is not a cat, and why
it is possible to call him one." '
Accordingly, that jurist proposed an affirmative
Proposal to key to the mystery encompassing the
identify nature of judicial evidence, by submit-
relevancy . ^ ^ i • t • n
and ting that — ^what may be judicially proved
admissibility, includes (only) 1st, all facts in issue, and
2d, all facts relevant to the issue. This would
make relevancy to the issue, except in the extreme
(1st) case mentioned, the sole criterion, indeed the
synonym, of admissibility of evidence.
But that proposal has been attacked by an
Criticism ^cut6 writer, who insists that it is only
of that by an arbitrary use of the word, "re-
proposai. levant," that the rules relating to rele-
1 Dig. of Law of Ev., introd.
6 CERTAIN ELEMENTARY TERMS.
vancy can be brought within the same class as rules
which determine what classes of fact tend to prove
a matter in question; and points out that hear-
say, being testimony reproducing "statements
which, if the persons making them were called as
witnesses, would be perfectly relevant," is ex-
cluded because those statements "are wanting in
the sanction and the tests which would apply to
them if they were so made," the rule of exclusion
here being a different one, and founded on a dif-
ferent reason, and "the doubt and suspicion which
attend them being a doubt and suspicion attaching
to their accuracy." ^
The ultimate basis of our system of the ad-
uitimate ductiou of judicial evidence, as has often
basis o( \yQQ^ remarked, is the recognized con-
Anglican . « p i r
law of catenation of most of the events sub-
evidence. mltted to humau experience and observa-
tion. Seldom does a fact stand without environ-
ment, — utterly isolated and solitary. The relation
of causality, between two facts, is the one of
principal significance to the logician and the stu-
dent of the law of evidence.^ Aristotle's dictum,
de omni et de nulla, inevitably controls the processes,
because that philosopher's discovery was of a
universal law of mental operation; but the princi-
ples of a deductive logic are not the sole guide of
1 Solicit. Jour., vol. 20, p. 906. cause is evidence — evidentiary — of
2 " Every chain of causality is a its effects (Benth., Rationale of Jud.
chain of evidence. Every effect is Ev., bk. 5, ch. 1, n.).
evidentiary of its causes: every
LOGIC AND EVIDENCE. 7
the judge or the advocate, for the reason, already
intimated, that positive, municipal law has super-
imposed various, mainly exclusory, rules. The
books are filled with reminders of the distinction
between natural and judicial evidence, as also be-
tween logical and legal relevancy, but the observa-
tions there encountered are most frequently of a
more or less vague and general character.
An attempt will be made to illustrate the ap-
luustration plicatiou of the formal syllogism to forensic
of the proof; which illustration will serve to in-
'and'tti" dicate and emphasize the legal differ-
liraitations, entlatlou of the ordinary logical process:
"^''^^ In an action, brought by a depositor in
in forensic ^ bauk, agalust the latter, to recover a
proof. balance, on account of the principal of
his deposit, vrith interest thereon, the issue, raised
by the pleadings, turned on the question whether
there had been an agreement to pay interest.
Plaintiff having produced evidence tending to
show such an agreement, defendant introduced
evidence tending to show an agreement that no
interest was to be paid, whereupon plaintiff, in
rebuttal, offered evidence that he had received in-
terest on balances, on deposit in the other banks
in the same locality; and sought to show an offer,
made by one of those banks, to pay a specified
rate of interest on all the money which he had,
for deposit; also to show what was the prevailing
rate of interest usually allowed by the local banks,
8 THE SYLLOGISM IN COURT.
on their depositors' balances. Held, inadmissible,
as "too remote," and tending to raise "collateral
issues." '
One of the steps in plaintiff's proj,Tess toward
the desired conclusion, at the trial, which the ap-
pellate court condemned, may, it is believed, be
exhibited, in its strictly logical aspect, thus:
Major 'premiss: — What all the local banks,
other than defendant, agreed to do, is (probably)
what defendant agreed to do.
Minor premiss: — All the local banks, other than
defendant, agreed to pay interest.
Conclusion: — Therefore, defendant agreed to pay
interest.^
By the ruling of the highest Court, adverse to
plaintiff's offer of evidence, the reasoning
™i'e?nTt analytically exhibited in the foregoing
subversive sylloglsm, whlch was an instance of Bar-
of logical. j)Qj-(j^ -^as, by no means, condemned. All
that logic looks to is the legitimacy of the act of
inferring the conclusion from the premisses. The
invalidity of a conclusion, arising from fallacies
(violations of the rules governing the process of
inference), is the same, in all reasoning, legal and
1 139 N. Y., 514, 523. in Richard Shelley, and never was
2 "Argument. That which origi- vested in Edward Shelley.
nally vests in the heir, and was not "And therefore the use vested
in the ancestor, vests in the heir by in Richard Shelley by purchase "
purchase. (Report of argument of counsel, in
"But this use originally vested Shelley's Case, 1 Coke Rep., 94 b;
1579, A. D.).
LOGIC AND EVIDENCE. 9
non-legal. The Conclusion, in the foregoing syl-
logism, was a valid deduction. But the law — the
Court — took exception to the premisses.
First, as to the major premiss. This proposi-
Evidenoe- tiou, to the exteut of its validity, was one
exceptions obtained by induction and generalization,
subvert the p i . . i i
premisses irom ordmary experience and observa-
ofsyiio- tion. It did not appear, in evidence or
gisms. utterance, but, rather, was subconsciously
in the reasoner's mind. While, as the court ob-
served, there might be "what is called moral evi-
dence, of a more or less convincing" character, in
its favor, it was rejected as being legally "too re-
mote," i. e., too far removed from the legal standard
of probability. The degree of probability, in other
words, was not sufficiently high for juristic pur-
poses. As soon as it was determined to reject
this major proposition, the syllogism was doomed,
and the minor premiss became unserviceable, be-
cause two premisses are essential to every argu-
ment. But
Second. The minor premiss ^ was excluded for
Evidenti- ^ further, independent reason, viz.: the
aiy facts Settled repuguance of the courts to the
raising of collateral issues. Had this evi-
dentiary fact been admitted, the court and
jury would, thereupon and thereby, have entered
upon the trial of as many subordinate issues, as there
were local banks concerned in the proposed evidence.
' N. B. This was the evidentiary fact.
are minor
premisses.
is the
10 CERTAIN ELEMENTARY TERMS.
The Conclusion of the syllogism was the fact in
The "Pact issiie; unless it be better to consider it as
serving as the major premiss of a syl-
lo ioai con- logisui, later in logical order, the conclu-
ciusionofa slon of which would be, that defendant
syllogism, ^g^g indebted to plaintiff in a specified
sum, as asserted and denied, respectively, in the
pleadings (the "issue").
The reasoning, in forensic contests, as in human
Enthymem- thought aud actlou generally, proceeds
atioaichar- ordinarily in enthymemes — syllogisms
acter of ^ . /* 1 1
wherem one oi the premisses is sup-
conscious
ratiocina. pressed, and a series of which forms what
"""■ the logicians term a sorites. The mind,
in its eager pursuit of the desired, ultimate con-
clusion, hurries from premiss to conclusion, and
from the latter to a new premiss, and thence to a
later conclusion, unconscious of the obedience ren-
dered by it, — subject to the possibility of a be-
trayal into fallacy, — to Aristotle's law. In these
legal arguments, specifically juristic rules are con-
tinually intervening, to thwart the progress along
strict logical lines, by demolishing premisses.
Issue. — Blackstone has already been quoted, as
^^^^g referring to the "fact or point in issue,"
(of£act);it3 and Mr. Justice Stephen, as proposing to
relation to i-gg^j-ict (or exteud) all admissions of evi-
dence to (1) facts in issue, and (2) facts
relevant to the issue. In pausing, a moment, to
consider this legal term, it is proposed to ignore the
PLEADINGS AND ISSUE. 11
rambling narratives of chancery, and keep in ex-
clusive view the ultra-refined system of pleaduig,
which grew up in the common-law courts, the gen-
eral aim whereof was, to ensure "the orderly pres-
entation, upon the record, of the contentions of
the respective parties, in relation to the subject-
matter of the controversy." ^
This aim was promoted by a series of "plead-
ings" (only one of which was, possibly,
common- & plctt) , foUowlug the Issuance and service
'a^ of the original writ, and commencing with
p ea ngs. pjg^jj^^jg'g declaration, to which defend-
ant might interpose his plea, which might be suc-
ceeded, in alternation, by the replication, rejoinder,
rebutter and surrebutter. The net result of this
scheme purported to be "to compel the pleaders
so to manage their alternative allegations as, at
length, to arrive at some specific point or matter
affirmed on one side and denied on the other." ^
This point attained, the parties were said to be
"at issue" — ad exitum.^
The "issue," then, was literally the exitus, exit
Issue, the or emergence of the contending parties,
object of from the field of preparatory altercation,
eIictIuc ^^^ entrance upon the stage of trial.
to the The formation of an issue was the end of
Issue. ^Y\ common-law pleading. The word,
"issue" (referring, now, to issues of fact, as dis-
1 Steph. on PL, § 2. s steph. on PL, § 59.
2 3 Blacks. Comm., 310. * I^id.: 3 Blacks. Comm., 314.
12 CERTAIN ELEMENTARY TERMS.
tinguished from those of law) came to denote the
fact, in regard to which the parties, through the
sifting process of the pleadings, at length reached
the respective attitudes of affirmation and denial.
This circumstance may explain the language of
Mr. Justice Stephen, where he speaks of "facts
relevant to the issue," and, in the next sentence,
of a fact "relevant to another fact." ^
It will be remembered, here, that a "fact in
issue" is a conclusion; to prove which
The "issue", ' ■*■ .
reached by conclusion Is the function of evidentiary
pleading, is facts. Scc Tuttle V. Hannegan,^and Stall
v. Wilbur,^ where the Court says, of a
complaint, that "the pernicious practice was fol-
lowed, of setting forth evidence, instead of facts to
be established by evidence": which raises a doubt
as to the propriety of Stephen's proposed rule,
making the "fact in issue" admissible in evidence.
"An issue is never raised as to an evidential
No issue fact; the only issues the law knows are
astoeviden- those which affirm or deny conclusions
laiy acs. ^^.^^^ ^^^ ^^ Hiore evidential facts." ^
' Objection. — What is an objection to evidence?
Objections To define an objection is a matter of no
to evidence; difficulty, it being the formal, oral state-
ment made by counsel, at trial, of his
opposition to the introduction of a document of-
fered, or the allowance of an answer, by a witness,
' Dig. of Law of Ev., introd. '77 id.; on p. 162.
2 54 N. Y., on p. 687. ■• Wharton on Ev., 3d ed., § 26.
OBJECTIONS TO EVIDENCE CLASSIFIED. 13
to a question put, by his opponent. Objections
have been divided into general and specific.
A general objection is where counsel, when evi-
Generai deuce is offered, or called for, says: "I
objection, object," ^either without more, or with ad-
ditions which the law condemns for a lack of pre-
cision, and which, therefore, fail to prevent the
objection from being relegated to the "general"
class.
A specific objection is one in taking which coun-
speoiflo sel indicates, with satisfactory definite-
objection, ness, one or more grounds of his opposi-
tion to the introduction of the proposed evidence.
It may be safely stated, that a general objection
General ^^ ^P* ^^ ^^ harmful to the objector. "A
objection prudent practitioner will hardly risk any
usually un- pQi^-^ Qu a general objection."^ More-
advisable. ^ ^ _ ^
over, where counsel volunteers a general
objection, he may always be compelled to make the
objection specific, at the demand of his opponent,
or by the Court on its own motion.
Certain of the settled principles, believed to
govern objections to evidence, may be noted
here:
The purpose of requiring an objection to be
Two ur- specific is (1) to aid the trial judge, and
poses of (2) inform the opposing counsel.
requiring aj^ ^g ^f importauce, that the points
intended to be taken on appeal should
1 See 113 Ind., 200. 2 Rush v. French, 1 Ariz., 99, 125.
14 CERTAIN ELEMENTARY TERMS.
be taken on the trial. It is important that the
Notice to judge should know what he is called upon
judge and ^q declde, and what is the theory of the
objector. It is important, also, that the
other side understand the objection and its
point."!
"If a party calls upon the trial court to make a
Foundation rullng In his favor, he must specify, with
for allegation reasonablo clearness, the point that he
erior. (jgg^j,gg considered and decided, in order
to predicate error upon an exception to the ruling
against him."^
"The object of the rule requiring objections to
Prevention evidence to be made specific, and to point
of surprise, out the preclse defect existing therein, is
to prevent surprise, and enable the party offering
it to obviate such difficulties as are merely formal,
and can be cured by reforming the question, or
which by further proof can be removed, and the
question rendered competent." ^
"It is an ancient and sound rule, that, when the
Objection to objcctlou Is to the mode of proving a fact,
mode of and not to proof of the fact itself, it must
^™°^' be distinctly placed upon that ground,
so that the opposite party may obviate the ob-
jection by proving the fact in a legal manner." *
1 McKeon v. See, 51 N. Y., 300, s Holcombe v. Munson, 1 Silv. Ct.
305. of App., 228, 233.
2 Sterrett v. Third Nat. Bank, 122 * Porter v. Valentine, 18 Misc.,
N. Y., 659, 662; Stouter v. Man. 213, 215.
R'y Co., 127 id., 661, 664.
FOUE PLIGHTS OF OBJECTIONS. 15
"There is reason for requiring the particular ob-
objeotion, as jections to be stated with reasonable cer-
aid to Court, talnty, for, in the hurry of a trial, it can-
not be expected that particular objections will
occur to the judge, although, if stated, he would
readily perceive their force. Counsel, who are
presumed to have studied the case, ought to be
able to state the particular objections, and, if none
are stated, it is fair to assume that none exist,
since an objection that cannot be particularly
stated is not worth the making." ^
Four distinct cases may be presented, on a trial,
Foursepar- ^^^■'- ""^herc a general objection is (a) sus-
ate plights tained, or (b) overruled; and where a
°* specific objection is (c) sustained, or
objections. -^ " ^ ' '
(d) overruled. The judicial rules be-
lieved to prevail in these several cases, will be
successively enumerated. The first three of those
rules are taken from one Opinion,^ and given
in the Court's own language. Though all the re-
marks of the court, quoted from that Opinion,
were not called for by the questions before it, the
rules therein stated, may, in view of numerous
judicial citations, be considered authoritative. In
commenting on the four rules, in succession, the
party, proposing the evidence objected to, will, for
brevity, be styled the raterrogator.
1 Ohio, etc., R. Co. v. Walker, 113 2 70 N. Y., 34.
Ind., 196, 200.
16 GENERAL OBJECTION; EFFECT.
(a) General objection sustained. — "Where evi-
Generai deiice Is Gxcluded upon a mere general
objection objection, the rulmg will be upheld, if
sustained. ^^^ ground In fact existed for the ex-
clusion." ^
Comment. — Here, the interrogator appeals. An
First rule appellant having the burden of showing
considered, error in a ruling of which he complains,^
it is obvious that, under this rule, the interrogator,
in order to secure a reversal of the exclusion, must
be able successfully to challenge his opponent to
point out a single one of all the exclusionary rules,
relating either to the form or to the substance of
evidence, which justified the trial court's action.
FaiUng in this, the interrogator will be held to have
waived precision in his opponent's objection, and
to have understood the ruhng to be based on the
ground or grounds of exclusion declared valid, on
the appeal. The words, "in fact," in the language
of the court, should not be understood as implying
any contrast to the law, they being, doubtless, in
the nature of an unnecessary intensive.
(b) General objection overruled. — "Where there
General ^^ ^ general objection to evidence, and it
objection is overruled, and the evidence is received,
overruled, .^j^g rulmg wlll uot be held erroneous, un-
ElTect. 1,1 11-1
less there be some ground which could not
have been obviated if it had been specified, or un-
1 Tooley v. Bacon, 70 N. Y., 34. 2 Mead v. Bunn, 32 N. Y., 279.
GENERAL OBJECTION OVERRULED, 17
less the evidence in its essential nature be incom-
petent." ^
Comment. — Here, the objector appeals. It may
Second conduce to clearness, in remarking upon
rule this rule, to throw it into a form more
considered, ^garlj resembling that of the preceding
one, thus: Where evidence is received over a mere
general objection, the ruling will be upheld, if the
interrogator could have obviated a specific ob-
jection, in case such had beesn made; which, pre-
sumably, he could not have done if the evidence
was so objectionable as to merit the description
of being "in its essential nature incompetent." It
is impossible to discuss, fully, the relations of this
hypothesis to this presumption, before settling the
meaning of "incompetent," a point not yet reached,
in the situdy. The best that can be done, at pres-
ent, is to submit the following description of the
situation of the parties in the appellate court : The
objector is attempting to secure a reversal of the
admission of evidence, and has the onus of showing
that error was committed below. He may say,
either: 1st, "True, I only objected generally, but
that was sufficient, because the evidence was in its
essential nature incompetent — meaning absolutely
and incurably inadmissible — and such evidence
should have been excluded upon a mere stop-
word;" or, 2d, "I do not contend that the evidence
was in its essential nature incompetent, but there
1 Tooley v. Bacon, vhi supra.
o
18 SPECIFIC objection; effect.
were one or more less radical grounds for its ex-
clusion, and, if I had specified such ground or
grounds, on the trial, my opponent could not have
obviated the difficulty. Hence, error."
(c) Specific objection sustained. — ^Where evidence
is excluded upon an objection, the grounds
objection whereof are specified, "the ruling must be
sustained, gugtaiiied upon that ground, unless the
evidence excluded was in no aspect of the
case competent, or could not be made so." ^
Comment. — Here, the interrogator appeals. The
Third rule objector has succeeded, below, in shutting
considered. Qut evldeucc, ou a particular specification
of the ground of its asserted inadmissibility. The
essence of the rule is contained in the words, "upon
that ground," occurring therein. That is, the task
of appellant is, in general, merely to subvert that
ground of exclusion. Maybe, the trial court ought
to have shut out the evidence, but if not on that
ground, he will secure a reversal of the exclusion.
It remains to consider the two exceptions. If, in
the words of the court, 1st, "the evidence excluded
was in no aspect of the case competent," or,
2d, "could not be made so," the exclusion will be
sustained, i. e., appellant will fail, though the ob-
jector specified amiss. Manifestly, the appealing
interrogator has the onus, not only of subverting
his opponent's specification, but also of negativing
the two exceptions. That is to say, after showing
1 Tooley v. Bacon, ubi supra.
SPECIFIC OBJECTION SUSTAINED. 19
that the ground, upon which the evidence was ex-
cluded, is not tenable, he must go further, and
show that he is not concluded by the residue of
the rule. That residue containhig the word "com-
petent," it is, here also, true that it is impossible
to discuss the rule fully, at present. The following
observations, however, may be made: The word,
"or," connecting what have been above designated
the two exceptions, should, almost certainly, be
read "and," because the appellant has to meet
both. Thus reconstructed, the latter portion of
the rule imposes on the appellant the task of show-
ing it to be untrue that the evidence which he
offered "was in no aspect of the case competent;"
or else, assuming that the evidence was of that
character, of showing that he could have made it
competent, if his opponent had apprised him of the
defect by a different, and correct, specification.
At this point, it must be confessed, a region of
Adiffioaity obscurity is entered, because of a doubt
stated. g^g |.Q ^]^g meaning of "in no aspect of the
case competent." Is evidence, so characterized,
identical with evidence "in its essential nature in-
competent" ? Apparently not, for it is incon-
ceivable that evidence of the latter description
should "be made" c6mpetent. Hence, probably,
the meaning of the former phrase is, "for no pur-
pose admissible, when offered." Such an inter-
pretation leaves room for an operation of the hy-
pothesis, that the evidence is capable of being
20 SPECIFIC objection; effect,
made competent. Upon this assumption, a situa-
tion contemplated by the latter portion of this rule
might occur as follows:
A party attempting to discredit his adversary's
Illustration wltuess by proving contradictory state-
tmder third i^euts madc, by the latter, out of court,
rule. without first laying a foundation by in-
terrogating the witness sought to be discredited,
concernihg such statements, is met by an objection
to the proposed evidence, as hearsay. The evi-
dence is excluded. Ordinarily, the interrogator,
on appeal, should secure a reversal of the exclu-
sion; for, if the objector had made the right specifi-
cation, the interrogator could have recalled the
witness sought to be discredited, for cross-, or
further cross-examination. But, suppose that wit-
ness departs this hfe between his examination and
the attempt to impeach him. In such case, the
interrogator could not lay such foundation — could
not make the impeaching evidence admissible —
and the appellant must fail, i. e., the ruling of the
trial court will be sustained. This illustration is
offered for what it may be worth.
If evidence "in its essential nature incompetent"
Evidence "in ^^ excludcd, ou a trial, under objection,
its essential . ^ . p i i
nature in- au crroucous specification of ground, by
competent" ^-^^ obiector, ought on principle to be as
compared •" ., ° .
witiithafin free from peril to him as a mere general
no aspect of objcctlon, wMch, as has been seen, would
fhe case
competent."
the case , <t^ • ,
be sufficient.
SPECIFIC OBJECTION OVERRULED. 21
(d) Specific objection overruled. — Where a specific
s eoiflo objection is overruled, and the evidence
objection is reccived, the rule appears to be, that
overruled. ^^iQ objcctor must staud on his specifica-
tion, and will not secure a reversal of the
admission of the evidence, on appeal, if he assigned
amiss. ^
Comment. — Here, the objector appeals. This rule,
Fourth if correctly stated, appears to be a mere
™'® branch of the rule, that a party cannot
considered. , -i -,.... n , ,
take an objection m an appellate court,
which he did not take below. "It is a general
rule, that a question will not be considered, that
is raised for the first time in this court." ^
In Ward v. Kilpatrick, infra, which was an ac-
case tion to foreclose a mechanic's lien, an
supposed- expert witness was called, for plaintiff,
enunciation ^ud askcd, ou hls dlrect examination,
o* whether certain frames, as set in the house,
made a part of the latter, and whether the
house would be finished without them. To which,
defendant objected "as immaterial, and that the
mechanic's lien-law does not authorize any lien
upon mirror-frames or hat-stands." Objection
overruled, and evidence received. On defendant's
appeal, he urged that "the evidence of a custom
or usage" had "been objected to," and was "clearly
inadmissible. . . . The evidence was incom-
I See Ward i;. Kilpatrick, 85 N. Y., 2 Dodge v. Cornelius, 168 N. Y.,
413. p. 245; see, also, 39 Miss., 385.
22 SPECIFIC objection; effect.
petent, and should have been excluded." The
Court of Appeals refused to sustain defendant's
exception, saying:
"A witness, who was a cabinet-maker, and had
done that kind of work in the construction of
houses, was asked if these frames, as set in the
house, made a part of the house, and if the house
would be completely finished without them. The
objection made was, not that the opinion of the
witness upon the point was incompetent, but
merely that the evidence was immaterial, which
conceded its competency, and that the act of 1875
did not authorize a lien upon mirror-frames or
hat-stands. The objections taken furnished no
valid reason for rejecting the evidence, and it is
unnecessary to debate the one now urged, which
was not even suggested upon the trial." ^
It may be proper to infer that, if the evidence
Supposed objected to, in the case cited, had been
exception " lu Its esseutlal uature lucompeteut, " the
highest Court would have reversed the
admission of the evidence. In other
words, it is suggested that the fourth rule is sub-
ject to an exception, as follows: Where evidence
totally and incurably inadmissible is received over
objection, a specific but untenable ground for which
is stated, the error in the specification will not be
fatal to the objector; the admission will be re-
versed.
1 S5 N. Y., 416.
to
fourth rule.
DERIVATION OF CERTAIN TERMS. 23
The next branch of this study will be to inquire
Meanings of into the meaniugs of the three words,
"inoompe- aj^Qyg quoted as frequently used in de-
"irreievant," scrlblng the ground of objection to evi-
"immate- dence, (1) as indicated by etymology,
(2) as given in the law-glossaries, (3) as
stated in text-books, and (4) as announced in, or
inferable from. Opinions of the Courts.
(1) Etymological Indications.
Incompetent. — "Competent" is the present par-
" Inoompe- ticlplo of the Verb "compete," used, how-
tent." ever, in its neuter and now obsolete sense,
Meaning
from of "to fall together;" the latter portion
Etymology, of the word being derived from the latin
verb peto, having the same root as the aorist of the
greek iriVrw. Whence, "competent" signifies — fall-
ing together, coinciding, fitting, admissible.^
Irrelevant. — "Relevant" is from the verb rele-
"ineievant." vare, to lift again, and so to relieve, help,
'"^^ assist: whence "relevant," by successive
shades of meaning, comes to signify — to the pur-
pose, germane (to a controversy), applicable.^
Immaterial. — "Material" is derived from the
"immate- latin materia, matter; and the grades of
rial." Id. meaning are — (1) not spiritual, (2) per-
taining to the matter, not to the form, of a proposi-
tion, (3) having such relation (to a controversy)
1 See Murray's New Eng. Diet. 2 gee Century Diet.
24 CERTAIN ELEMENTARY TERMS.
that it ought to influence the determination,
(4) significant.^
From this, it appears that etymology furnishes
Eesuitsof the following equivalents: Incompetent =
etymology, madmisslble ) irrelevant = inapplicable ; im-
material = insignificant.
(2) Lexicographic Suggestions.
Anderson: Competent — proper or admissible, as
Anderson, evldeuce. RELEVANT — as applied to tes-
Definitions. tlmouy, that which directly touches upon
the issue made by the pleadings, so as to "assist"
in getting at the truth of it. Material — of the
substance, essential, important.
Abbott: Incompetent — as applied to evidence:
Abtott. not proper to be received; inadmissible,
^'i- as distinguished from that which the court
should admit. Irrelevant — not material to • an
issue. Material — important; as applied to evi-
dence, much the same as relevant. Matters are
pronounced material or immaterial to an issue,
with the meaning that they are relevant or irrel-
evant.
Cyclopedic: Competency — in the law of evi-
cyoiopedie. deuce, that quality of evidence which
I''- renders it proper to be given on the trial
of a cause, if it be relevant to the issues. Incom-
petency — of evidence: not proper to be received.
1 See Century Diet.
DICTIONARY DEFINITIONS. 25
Relevant — in the law of evidence: having rela-
tion; applicable; applicable to the issue. Irrel-
evant — that which does not support the issue, and
which, of course, must be excluded. Material — ■
that which is essential or important. Immate-
rial — Not material; not essential or important.
Bouvier: Competent — evidence: that which the
Bouvier. veiy nature of the thing to be proven re-
^''- quires. Relevancy — applicability to the
issue; that quality of evidence which renders it
properly applicable in determining the truth and
falsity of the matters in issue. Materiality — -
capability of properly influencing the result of the
trial.
Burrill: Competency — capability; admissibility.
Burriii. Relevant — in the law of evidence: hav-
jd. ing relation; applicable; applicable to the
issue. Immaterial — not material; not essential
or impprtant.
It cannot be denied, that whatever light has
been thrown upon the three words, "in-
of competent," "irrelevant" and "imma-
foregoing terfal," by the inquiry into their deriva-
definitions, ^^^j^g ^^^ consultatlou of the law-diction-
eto. '
aries, leaves a decided impression that
they differ but little from one another, in meaning,
and, which is of special moment, that the idea run-
ning through all three is not much more definite
than a characterization of evidence, offered, as un-
suitable, improper, inadmissible.
26 CERTAIN ELEMENTARY TERMS.
Were such impression correct and indubitable,
the result would be, to relegate an objection, in-
volving the use of one or more of the three words,
by way of an attempt at specification of ground,
to the class of general objections, with the several
dangers, and contingent immunities, to the re-
spective parties, of which a view has been obtained
in the foregoing mention of certain rules of prac-
tice.
It will be noticed that one of the law-lexicons,
"immate- clted, exprcssly asserts the substantial
rial," not equivalence, in legal content, of imma-
essentially . t t • T i
a word of teriality aijd irrelevancy; but a close
relation. scHitiny may be deemed to disclose at
least a linguistic difference between "immaterial,"
on the one hand, and each of the two remaining
words, on the other,— in this, that "immaterial"
appears to be less clearly a word of relation. That
which coincides with {i. e., is competent), and that
which assists [i. e., is relevant), call insistently for
the coincident object, and for that to which the
assistance is rendered, respectively; whereas "im-
material" may be regarded as a simple assertion
of non-significance or vacuity. In such expres-
sions, however, as "material to," which occur in
legal phraseology, a notion of relativity crops
out, even in this adjective; and so, it may be,
an ambiguity arises, which may explain diver-
gences in the expressions contaioed in judicial
Opinions.
DEFINITIONS BY COURTS, ETC. 27
It is next in order, to attempt to ascertain
Definitions whcthcr the suggested impressions of
^ ". similarity, and of a conmion generality,
and court in the three words, is confirmed or modi-
opinions. ggjj \)y intimations contained in the legal
treatises, and in the judicial opinions upon which
the former are founded. It is possible that the
judicial expressions and decisions will exhibit a
tendency to fix a technical import on one or an-
other of the words, irrespective of etymological
considerations, and even inconsistent with the
pronouncements of the lexicographers; authorita-
tively establishing differences among them, and
according a specific quality to one or more of the
trio.
In view of the nature of judicial decisions, the
Availability opinlous of the courts will not be expected
of judicial ^Q prove a field fruitful in formal defini-
deliverances. ,. n i -ri j i 'm • r j'
tions of words. Rather, will mformation,
as to the verbal meanings, be obtained by inference
from adjudications upon the quality and suffi-
ciency of objections taken by advocates in particu-
lar cases. In other words, the search, in the Re-
ports of decided cases, is most likely to result in
learning whether an actual objection, taken in a
particular cause, and involving the use of one or
more of the three words, was held to be general, or
specific, as distinguished from discovering a pro-
crustean definition of any one.
28 CERTAIN ELEMENTARY TERMS.
(3) Text-writers' Definitions:
Stephen, who proposed to identify relevancy,
Stephen, and admissibihty, suggested the following
on relevancy, definition of "relevant": "A fact is rel-
evant to another fact, when the existence of one
can be shown to be the cause, or one of the causes,
or the effect or one of the effects, of the existence
of the other, or when the existence of the one,
either alone or together with other facts, renders
the existence of the other highly probable or im-
probable, according to the common course of
events." ^
The assertion may be ventured, that the average
^j^.g trial-advocate would not, invariably or
definition readily, entwine his apprehension about
considered, .f^j^^ ramificatious of this definition, when
called upon instantly to decide whether or not to
trust to the word "irrelevant," as a specification
of the ground of an objection; nor would he need
to, if relevancy and admissibility were synonymous,
for, in such event, "irrelevant" would clearly cease
to possess a specific import. The definition of
"relevant," above-quoted, has been asserted to
have been taken from an earlier Indian pamphlet,
and to have been abandoned by the writer to
whom it is generally attributed.
According to Wharton, "relevancy is that which
wiarton, conduccs to the proof of a pertinent hy-
on relevancy, pothesis;" the hypothcsls, referred to, be-
1 Dig. of Law of Ev., introd.
TEXTUAL DEFINITIONS. 29
ing one which, "if sustained, would logically in-
fluence the issue. . . . Hence it is relevant to
put in evidence any circumstance which tends to
make the proposition at issue either more or less
improbable." ^
"In view of the complexity of human affairs, and
Jones, the infinite variety which questions of fact
on relevancy, assume in courts of justice, it is obvious
that no definition of the term, relevancy, can be
very satisfactory, or afford any very practical aid." ^
The relation, expressed by the words "logically
Chamber- P^obatlve tendeucy," which one fact sus-
layne, talus to auother, is termed relevancy.
on relevancy, u Qf ^-^[s, the law fumlshes uo test."'
"The only practical rules that can be formulated,
Reynolds, SiS to the relevaucy of those facts from
on relevancy, the exlsteuce of whlch a fact in issue may
be probably inferred, are mere enumerations, on
the one hand, of certain classes of facts which have
been ascertained by experience to be capable of
supporting an inference, as to other facts, suffi-
ciently probable to be the foundation of a legal
judgment, and, on the other hand, of certain other
classes of facts from which no inference could be
drawn carrying with it such a high degree of
probability as would justify any court in making
it the basis of its decision." *
lEv., 3d. ed., §§ 20, 21. 3 Taylor on Ev., Chamberlayne's
2 Jones on Ev., § 136. Notes, 2.
' Reynolds on Ev., § 6.
30 CERTAIN ELEMENTAEY TERMS.
"As to relevancy, there is a distinction between
Bradner, logical relevancy and legal relevancy.
on relevancy. .... There Is a point, on the ques-
tion of relevancy, where it depends entirely upon
the discretion of the judge, namely, in cases where
the question is a close one as to whether certain
facts are too remote, although connected with the
fact in issue. Upon such questions, no exact rule
can be formulated." ^
The writers of treatises seem generally, on ex-
Greenieaf.on amiuation, uot to have deemed it feasible,
competency, qj. -^y^q^]^ ^]^q while, to propouud formal
definitions of competency of evidence. Greenleaf
appears to be exceptional, in this respect; he stat-
ing that, "by competent evidence is meant that
which the very nature of the thing to be proved
requires, as the fit and appropriate proof in the
particular case." ^ This might perhaps be con-
sidered as good a definition of evidence, as it is of
competency. It is re-stated, verbatim, by a later
author.'
No formal definition of "material," as applied to
evidence, has been encountered in any of
Paucity of i-ii
textual the text- books which have been con-
definitions of suited. Its near relative, "relevant," on
"material." ^j^^ other haud, is almost universally de-
fined, and frequently discussed at length, in those
works.
1 Bradner on Ev., introd., ix. 3 Bradner on Ev., § 13.
2 Ev., 16th ed., § 2.
JUDICIAL DEFINITIONS OF TERMS. 31
(4) Judicial Definitions:
In 1858, the English Court of Exchequer, dis-
Ambiguity cussing a litigated point, remarked: "Am-
ofterm, biguitj has arisen from the word, rele-
" relevancy." ya^cy, being used in different senses,
whereas, if it always had the same meaning, the
obscurity which surrounds this question would be
removed." ^
In Platner v. Platner,Hhe Court of Appeals said:
" The meaning of the word, relevant, as applied
Judicial ^^ testimony, is that it directly touches
definition of upon the issue which the parties have
"relevancy." jj^^dc by their pleadlugs, so as to assist in
getting at the truth of it. It comes from the
French reliever " (sic), " which means to assist.
Whatever testimony was offered, which would as-
sist in knowing which party spoke the truth of the
issue, was relevant; and when to admit it did not
override other formal rules of evidence, it ought
to have been taken. . . . Was the testimony
irrelevant? By which is meant, in this case, that
the connection between the fact which it proves
and the fact in issue is too remote and conjec-
tural."
In Cole V. Boardman,^ it was said:
"Legal relevancy includes logical relevancy, and
Id. requires a higher standard of evidentiary
force. A fact logically relevant may be rejected if,
1 Adams v. Lloyd, 3 H. & N., 351, 2 78 N. Y., 90.
361. =63N. H., 580.
32 CERTAIN ELEMENTARY TERMS.
in the opinion of the judge and under the circum-
stances of the case, it be considered essentially mis-
leading or too remote."
In Levy v. Campbell/ it was said:
"Relevancy, as that term is used by writers, on
Id. the law of evidence, omitting metaphysi-
cal distinctions, is that which conduces to prove
a pertinent theory in a case, or one which influences
or controls the case."
In Atkins v. Elwell,^ it was said:
"Although, in strictness, the epithet of incom-
Id of petent, applied .... to a paper
"inoompe- .... may indicate that ....
tenoy." j^ ^^^ objectionablc in its form or mode of
authentication, rather than for what it contained,
yet the common and different use of the phrase
has worn off the sharpness of this meaning."
Greenleaf's definition of "competent evidence"
Judicial is quoted, verbatim, in Porter v. Valen-
definitions of tlnc,^ Shea V. Mabry,^ and Horbach v.
.■competent." g^^^^g
In Ryan v. Town of Bristol,* it was said:
"The real grievance of which the defendant com-
id. plains is, that there was no competent evi-
dence before the jury upon the question of con-
tributory negligence, and that the court ought to
have so told the jury and in effect directed a ver-
1 20 S. W. (Tex.), 196. * 1 Lea, 319.
245 N. Y., 753. =43 Tex., 242.
'18 Misc., 213. » 63 Conn., 26.
JUDICIAL DEFINITIONS OF TERMS. 33
diet on this point. By competent evidence here
we understand the defendant to mean relevant
evidence."
In Dedric v. Hopson/ it was said:
"The word, incompetency, is ... . used
jd of *^ express the thought that certain evi-
■inconipe- deuco cauuot be lawfully received, or that
t^'-oy" a witness cannot lawfully testify. It would
be quite properly used to express the idea that a
witness could not be required to testify concerning
certain facts."
In Porter v. Valentine,^ it was said:
"Evidence offered in a cause, or a question pro-
M. of pounded, is material when it is relevant
"material." and goes to the substantial matters in
dispute, or has a legitimate and effective influence
or bearing on the decision of the case."
In David Bradley Mfg. Co. v. Eagle Mfg. Co. ,3
it was said:
"Materiality means the property of substantial
M. importance or influence, especially as dis-
tinguished from formal requirement."
In Pangburn v. State, ^ it was said:
"Materiality, with reference to evidence, does
Id. not have the. same signification as rel-
evancy."
In Peo. V. Manning,'^ it was said:
162 Iowa, .'532. •'56 S. W. (Tex.), 72.
2 18 Misc., 2i3. MS Cal., 335.
3 57 Fed. Rep. 9,<^0.
3
34 CERTAIN ELEMENTARY TERMS.
"There is a wide distinction between imma-
Differenoe teiial and incompetent evidence. It may
between |-,g material, and tend to prove the issue,
and "incom- but incompetent for that purpose under
petent." the Hiles of law. On the other hand, it
may be competent evidence in a proper case, but
immaterial to any issue before the court." The
meaning of the second sentence is obscure.
From the foregoing definitions, gathered from
Inferences treatises and judicial Opinions, it may be
from permissible to make the following infer-
^l^ ences: "Competent" means admissible,
judicial and "incompetent," inadmissible; where-
definitions. ^qj.q^ qj^ objectlon to evidence, as incom-
petent, is absolutely general, i. e., affords no in-
timation of the ground of the objection to the
admission. "Relevant" and "material" agree, in
referring to matter of substance, as distinguished
from technicalities of form or procedure; in other
words, relevant or material evidence is such as
possesses an inherent capacity or tendency to aid
in establishing or disproving the fact in issue. An
objection to evidence, as irrelevant, or as imma-
terial, would, therefore, seem to be specific.
Whether these tentative deductions will prove to
be supported by actual adjudications, is next to
be ascertained.
SECTION II.
Cases, Adjudicating on Objections.
The decisions, now to be cited, passing on ob-
orderof JGctions, taken to evidence, which in-
oitation volved the use of one or more of the three
of cases. ^Qrds Under examination, will be referred
to, in an order of succession dependent on the
number of those words which were used by the
objector, or were discussed by the court; begin-
ning with decisions in which only one of the words
was concerned.
Incompetent, etc. — In an action brought to re-
inoompetent, cover damages for injuries suffered by a
^*''- passenger, through defendant's negligence
in starting a train with a sudden jerk, while plain-
tiff was alighting from a train, a witness for plain-
tiff, who had been sitting with the latter in the
smoking-car, when a dispute occurred there, about
fare, between plaintiff and the conductor, was
asked, on his direct examination, to repeat a con-
versation which occurred after that dispute, and
was had between witness and the conductor, in
35
36 CASES, ADJUDICATING ON OBJECTIONS.
another car into which witness had gone. To this,
defendant objected, as "incompetent, inadmissible,
and that anything the conductor said to witness
in the car next to the smoking-car was not compe-
tent." The objection was overruled, and the testi-
mony received, which was to the effect that the
conductor asked witness whether he was going to
get off at Clyde (the station at which plaintiff
afterwards alighted), and then said: "You want to
be ready to get off. I will get even with those fel-
lows." On defendant's appeal, the court reversed
the admission of the evidence, observed that the
serious question in the case was whether the decla-
ration of the conductor was part of the res gestce,
held, that it was not, and said:
"The plaintiff insists that that ground of in-
competency was not raised at the trial ....
In this he is clearly mistaken. The objection was
taken that the evidence was incompetent, and that
raised then, and presents here, every ground of in-
competency which could not have been obviated
at the trial, had special attention been called to it.
The fact that they" (the declarations) "were not
a part of the res gestae, if that be true, was a reason
why they should be held to be incompetent, and
when one makes an objection which is based upon
a right ground, the fact that he does not give every
reason why his objection is well taken is of no im-
portance, provided that the ground for the incom-
petency could not have been obviated, and there-
objection: immaterial. 37
fore it was not necessary that the reason why the
incompetency existed should have been more par-
ticularly stated, if, indeed, we can assume that
that was not done, which, I think, cannot be fairly
assumed from the record." '
Remark. — This decision, it is submitted, was an
application of rule "(b)." The admission of the
evidence, by the trial court, was erroneous because
a declaration, not a part of the res gestce, was, in its
essential nature, incompetent. "Incompetent"
was, therefore, in reality, treated as a general ob-
jection. But the closing words of the passage
quoted from the Opinion probably render the ref-
erence to the principle embodied in rule "(b)"
obiter, indicating, as they do, that the objector's
allusion to "the car next to the smoking-car" gave
his objection a specific character, and that the
specification was accurate, as pointing to the ap-
plicability of the rule of res gestce. "Inadmissible"
evidently went for nothing, as an attempt at specifi-
cation.
Immaterial. — In an action on an accident pol-
immateriai. icy, it appeared that, in an application-
blank, which had been filled out by defendant's
agent, a response, purporting to have been made
by plaintiff, to one of the printed questions, was to
the effect that the latter was, at the time, in the
service of one W. The defendant, in its Answer
1 Taylor v. N. Y. C, etc., R. R. Co., 63 App. Div., 586, 588.
38 CASES, ADJUDICATING ON OBJECTIONS.
to the Complaint, alleged that this statement was
untrue; which, if substantiated by evidence, would
have been a defence. On the trial, plaintiff was
permitted to testify, over defendant's objection
that the evidence was "immaterial," that he, plain-
tiff, did not so state, to the agent who filled out the
blank. On defendant's appeal, the Supreme Court,
at General Term, sustained the admission of the
evidence, saying:
"It was competent to prove by parol the actual
transaction between the insured and defendant's
agent. The question was perhaps objectionable in
form, but the defendant's objection went to the
materiality of the evidence sought to be elicited,
and it is now too late for him to insist that the
question and answer were incompetent without
further explanation by the plaintiff." *
Remark. — This decision clearly intimates that
"immaterial" relates to substance, as distinguished
from form, and applies the rule, that one who ob-
jects to a fact being proved at all, and is overruled,
cannot, on appeal, urge a defect in the mode of
proof. It may perhaps be improper to attempt to
draw any certain inference, as to whether the ap-
pellate court considered the objection which was
taken general or specific; imless it be a correct
statement of doctrine, to say that an objection go-
ing to the substance of evidence is always deemed
specific. In such event, the decision was an ap-
1 wader V. Accident Assoc'n, 14 State Rep., 365, 367.
objection: immaterial. 39
plication of rule "(d);" objector specified amiss,
on the trial, and hence was remediless, on the ap-
peal.
Immaterial. — In an action for negligence, the
Immaterial, plauitiff was allowed to testify, over de-
fendant's objection to the evidence as "imma-
terial," why he was not positive who accompanied
him on his return home, after the accident. On
defendant's appeal, the N. Y. Common Pleas, at
General Term, sustained the admission of the evi-
dence, saying :
"The objection was to the materiality of the
evidence, but it appears that the testimony was
elicited to explain plaintiff's statement, on cross-
examination, that he could not identify the person
accompanying him home, and, in that connection,
it cannot be said to have been immaterial, and the
objection to its materiality conceded the compe-
tency of the evidence." ^
Remark. — It is supposed that this decision may
be paraphrased thus: — The evidence in question
had a bearing on the issue, and defendant's con-
tention to the contrary was properly overruled.
No inference, as to the general, or the specific, char-
acter of the objection appears to be deducible.
The final clause of the quotation from the Opinion
seems to be equivalent to saying, that, when one
objects to evidence solely on the ground that it
1 James v. Ford, 30 State Rep., 667, 670.
40 CASES, ADJUDICATING ON OBJECTIONS.
is foreign to the case, he admits that there is no
other objection to its admission.
Immaterial. — In an action brought against the
Immaterial, sureties on the bond of an insurance
agent, to recover a balance of the amount of a
defalcation, defendants' Answer to the Complaint
contained no effectual denial, but set up, as a de-
fence, certain events, to be mentioned, which were
alleged to have occurred before any default on the
part of the agent. On the trial, defendants offered
to prove that, after a part of the agent's misappro-
priation of funds had occurred, they had notified
plaintiff of their desire to withdraw from the bond,
and that plaintiff, in order to induce them to re-
main, had promised to take certain precautions,
such as requiring the agent to account monthly,
etc., which promise had not been kept; whereby
the balance of indebtedness, for which the action
was brought, had accrued. Plaintiff's objection to
this evidence, as "immaterial," was sustained, and
the evidence excluded. On defendants' appeal,
the court reversed the exclusion, saying:
"The offer involved a defence for the sureties,
to some extent, and in some amount, unless certain
technical criticisms justify its rejection. It is said,
no such defence was pleaded. It was pleaded as
occurring before any default, and if such objection
had been made, an amendment of the Answer might
justly have been allowed, asserting that it occurred
objection: immaterial. 41
also after default. ... If the offer was very-
general, the objection to it was of the same char-
acter, merely that it was immaterial, and as we
can see in it the elements of a possible defence, we
think it ought not to be construed too rigidly for
the purpose of justifying its rejection." ^
Remark. — Here, "immaterial" is expressly stated
to be a general objection; and, on that basis, as the
evidence was excluded on the trial, the decision
would fall under rule "(a)." And it might have
been expected that the trial court would have been
sustained, since a ground, pointed out by the ap-
pellate court, existed for the exclusion, namely : the
proposed evidence was not within the pleadings.
But the ruling below was not upheld, because the
application of the principle embodied in rule " (a) "
was considered, under the particular circumstances,
to be too technical. The following view of the
gist of this decision may be permissible: Notwith-
standing the judicial remark, that the objection was
general, the case really turned on the distinction,
between objections to form and objections to sub-
stance. Plaintiff's objection, that the evidence of-
fered had no bearing on the issue, though correct
as the Answer to the Complaint stood, would not
have been good, if the trial court had allowed an
amendment of the Answer; and this the Court
might have done, if the objection had been ex-
plicitly taken, that the evidence offered was not in
support of the allegations of that pleading.
1 Emery v. Baltz, 94 N. Y., 408, 414.
42 CASES, ADJUDICATING ON OBJECTIONS.
Incompetent and immaterial. — On the trial of an
Incompetent ^ctlon brought to Tecover a balance
*"* alleged to be due on a contract for
immaterial. , ,
buildmg a house, it becoming apparent
that plaintiffs would be unable to prove full per-
formance of the contract, they were permitted,
over defendant's objection that the same was
"immaterial and incompetent," to give evidence
tending to show a substantial performance, and a
waiver as to what was left undone. At the close
of the evidence, the trial court, on plaintiffs' mo-
tion, permitted the pleadings to be conformed to
the proof; which permission defendant, on his ap-
peal, alleged as error, contending that such a
motion cannot be granted where objection to
the admission of evidence is promptly taken on
the ground that it does not tend to support the
allegations of the pleading. But the trial court
was sustained, on the appeal, the court saying:
"This is the rule correctly stated; but it does
not assist the defendant for the reason that no
objection was made by him, that the evidence was
inadmissible upon the ground that it did not tend
to support the allegations of the pleadings. There
is no case that holds that the pleadings may not
be conformed to the proof where the sole objection
to the evidence is, that it is incompetent and im-
material. . . . The objection interposed, as
'incompetent and immaterial,' is insufficient to
raise the question." ^
1 Charlton v. Rose, 24 App. Div., 485, 487.
objection: incompetent and immaterial. 43
Remark. — Intimation, that "incompetent and
immaterial" is a general objection.
Incompetent and immaterial. — "There are several
Incompetent exceptlons to testlmony, urged on be-
and half of the appellant. The difficulty
immaterial, ^j^]^ these crlticlsms lies in the fact
that the objections urged were not sufficiently
specific. To illustrate: In one instance, a witness
on behalf of the plaintiff was inquired of, concern-
ing an offer which purported to be made by the
company, evidently in writing. The ob-
jections tendered were that the proffered testimony
was incompetent and immaterial. It was both
competent and material. Had the objections stated
that the instructions were in writing, and that the
question involved a conclusion, they would have
been available, and the trial judge would then have
sustained the objections, and the vice in the ques-
tion could have been eradicated." ^
Remark. — Intimation, that "incompetent and
immaterial" is a general objection. Application of
rule "(b)."
Incompetent and immaterial. — ^A copy of a "pro-
test," made by the master of a vessel, was
Incompetent . -. , . -. -. . .
and received m evidence, over an objection
immaterial, that It was "immaterial and incompe-
tent." The witness who produced the paper testi-
1 Asbestos Pulp Co. v. Gardner, 39 App. Div., 654.
44 CASES, ADJUDICATING ON OBJECTIONS.
fied that he had searched for the original, and could
not find it, and that the copy was correct. On ap-
peal, the court sustained the admission, saying:
"The first objection made by the plaintiffs was
'to the reading of the protest, as incompetent and
immaterial.' It is now sought to sustain this ob-
jection on the grotmd that the paper read was a
copy and not the original. Such does not appear
to have been the explicit objection at the circuit.
We think that idea was not conveyed to the mind
of the court. ... To make the alleged defect
in the paper itself available on review, the atten-
tion of the court and of the opponents should have
been drawn with more exactness to the specific
ground of objection now taken. Had this point,
that this was but a copy, been plainly presented,
it might have been, if indeed it was not, avoided
by preliminary proof of loss or destruction of the
original. By the objection, that the reading of
the protest was incompetent, was, doubtless, un-
derstood that, though, as a general rule, the dec-
larations of a party made out of court may be
proven against him, still a 'protest' was not such
a declaration as came within that rule. But it was
a proper mode of showing a declaration of the
plaintiffs. ... It spoke of matters material to
the pending issue, and it furnished a proper mode
of establishing those matters against the plain-
tiffs." '
I Atkins V. Elwell, 45 N. Y., 753, 756.
objection: incompetent and immaterial. 45
Remark. — It is to be inferred, that "incompetent
and immaterial" is a general objection. The case
seems to be an application of rule "(b)." The
evidence was not in its essential nature incom-
petent; and the objection, urged on the appeal, —
that the paper was not the best evidence, — might
perhaps have been obviated if it had been taken
at the trial. Finally, there is ground for consider-
ing the entire ruling, as to evidence, obiter.
Incompetent and immaterial. — In an action upon
incom etent contract, plaintiff offered evidence tend-
and ing directly to contradict testimony which
immaterial, jj., a wltuess for defendant, had given,
"upon the vital issue in the case;" which was ad-
mitted over defendant's objection thereto, as "im-
material and incompetent." On defendant's ap-
peal, the court sustained the admission of the
evidence, saying:
"We think that this was not only material, but
also competent. . . . The acts and declara-
tions of a witness, which are inconsistent with his
testimony, may be given in evidence against him;
this evidence was, therefore, competent, and the
defendant was not entitled to have it excluded upon
the grounds stated by him. The rule, that a party
seeking to avail himself of an exception to the ad-
mission of improper evidence on a trial must point
out the particular ground of his objection, is a
salutary one, and its application here is proper and
46 CASES, ADJUDICATING ON OBJECTIONS.
just. If the objection had been taken, that H.
had not been previously interrogated in regard to
this transaction, it could easily have been obviated
by calling him upon the stand, and thus laying the
foundation for his contradiction. A party ought
not to be allowed to remain silent and conceal the
real objections which he may have to the ad-
missibility of evidence, and then, after misleading
his adversary by frivolous objections, for the first
time reveal his complaint in the appellate court." ^
Remark. — Inference, that "incompetent and im-
material" is a general objection, and, particularly,
that it is bad where the real objection is, not to the
substance of evidence, but that a necessary pre-
liminary to its introduction has not been observed.
"Incompetent" seems to have been considered too
general, and "immaterial" inaccurate.
Incompetent and immaterial. — In an action for
inco.npetent negUgeuce, plaintiff's physician was called
and as a witness in his behalf, and asked, on
immaterial, j^-g (j^j-ect examination: "Assuming the
man's age to be ... . years, and judging
from that, and from the whole history of his case,
and what you have learned of it in all ways, would
you say that it is your opinion that the trouble of
the heart is likely to improve?" An objection to
this evidence, as "immaterial and incompetent,"
was overruled, and the evidence was admitted.
1 Mead v. Shea, 92 N. Y., 122, 127.
objection: incompetent and immaterial. 47
The admission was sustained on appeal, the court
saying:
"The objection does not specify the grounds for
excluding the question, or in what respects the
evidence called for by the question is improper, and
it is, in effect, general in its nature. ... It
may be conceded that it would suffice, if the ques-
tion was altogether an improper one, or the evi-
dence called for in its nature quite inadmissible.
But we cannot say that The objec-
tionable feature in the question consisted in calling
for an opinion based upon witness' knowledge de-
rived from outside sources .... and the
question allowed witness to state possible conse-
quences, and such as were speculative and not
reasonably certain. . . . Had the objection
stated these grounds, counsel might have changed
the form of his question." ^
Remark. — Intimation, that "incompetent and
immaterial" is a general objection. Application
of rule "(b)."
Incompetent, immaterial, etc. — In an action against
Incompetent, ^ bank, the chief controversy was, whether
immaterial, interest was to be allowed on certain de-
*'"• posits of money made in the bank by
plaintiff's testator. Plaintiffs having given evi-
dence tending to prove an agreement to pay in-
terest, defendant gave counter-evidence tending to
1 Wallace v. Vacuum Oil Co., 128 N. Y., 579-581.
48 CASES, ADJUDICATING ON OBJECTIONS.
show a subsequent arrangement dispensing with
interest. In rebuttal, plaintiffs were permitted to
prove, over defendant's objection that the evi-
dence was "improper, incompetent and imma-
terial," the value of the use of money in the vicinity;
also that testator had money in other local banks,
which paid interest, and that one of those banks had
offered him a specified rate of interest, for any
money he might have, to deposit. On the primary
appeal, the Supreme Court, at General Term, sus-
tained the admission of this evidence, saying:
"It is relevant to put in evidence any circum-
stance which tends to make the proposition at issue
either more or less improbable. The authorities
cited seem to uphold the doctrine, that evidence of
circumstances which tend to make a proposition at
issue between the parties improbable is admissible
to aid the court in correctly determining such
issue." ^
But, on the further appeal, the highest Court
reversed the admission of the evidence, saying:
"The testator's transactions with the other banks
had no relation whatevei" with his transactions with
the defendant. . . . While this evidence may
be what is called moral evidence, more or less con-
vincing, we are satisfied that it was illegal. . . .
Evidence must legitimately tend to prove the issue
between the parties. In 1 Greenl. Ev., § 52, it is
said: 'This rule excludes all evidence of collateral
1 McLoghlin v. Nat. Mohawk Vail. Bank, 65 Hun, 342-348.
objection: incompetent, irrelevant, etc. 49
facts, or those which are incapable of affording any-
reasonable presumption or inference as to the prin-
cipal fact or matter in dispute.' . . . Such
evidence is too remote, inconclusive and uncertain
in its bearing; and .... many illustrations
might be put, showing that facts which constitute
moral evidence, quite convincing, may yet be ir-
relevant, when tested by legal rules." ^
Remark. — The words ''improper" and "incom-
petent," used by the objector, seem to have played
no part in the ultimate decision. On the other
hand, "immaterial" appears to have been treated
as equivalent to "irrelevant," and to have been
held specific, and correct as a statement of the
ground of objection. Hence, on the ultimate ap-
peal, the objector stood successfully on an objec-
tion taken at the trial. Application of rule "(d)."
Incompetent, irrelevant and immaterial. — In an ac-
tion brought to recover for personal in-
irreievant ' jurles, plaiutlff's physlciau was called as
and a witness in her behalf, and asked, on his
immaterial. (jjj.gg^ examination: "In your opinion, is
she likely to recover?" An objection to this, as "in-
competent, irrelevant and immaterial," was over-
ruled, and the evidence admitted. On defendant's
appeal, the Supreme Court, at the Appellate Term,
sustained the admission, and, in response to a con-
tention of objector, that the evidence called for
1 Same case, on ultimate appeal, 139 N. Y., 51*, 522.
4
50 CASES, ADJUDICATING ON OBJECTIONS.
was "improperly allowed because it was not based
on personal observation, because its scope was not
limited, and it did not appear that everything upon
which it was based had been presented in evidence,
and that it was speculative, conjectural and elimi-
nated the element" (sic) "of reasonable certainty,
and that it allowed an opinion based in part upon
facts outside of the evidence," said:
"None of these grounds of objection was taken
at the trial, when, if it had been, it could have been
obviated by other inquiry of the witness. . . .
Such objection does not specify the grounds for
excluding the question, or in what respects the
evidence called for by the question is improper,
and it is, in effect, general in its character." ^
Remark. — Inference, that adding "irrelevant"
to "incompetent and inmiaterial" does not give
the objection a specific character.
Incompetent, irrelevant and immaterial. — In an
action brought by an attorney, to recover
Ineompetent, *• n * i • i i
irrelevant ^*^^ proiessioual scrviccs rendered, a paper
and offered by the plaintiff was admitted, over
immaterial, defendant's objection that it was "in-
competent, irrelevant and immaterial," On de-
fendant's appeal, the Supreme Court, at the Ap-
pellate Term, sustained the admission saying:
"This objection did not raise the question, now
1 Brown v. Third Av. R. R. Co., Vacuum Oil Co., 128 N. Y., su-
19 Misc., 504; citing Wallace ». pra.
objection: incompetent, irrelevant, etc. 51
argued, that it was not duly executed, not a bind-
ing or valid agreement, atid that defendant was not
a party to it." ^
Remark. — Inference, that "incompetent, irrel-
evant and immaterial" is a general objection.
Incompetent, irrelevant and immaterial. — ^A copy
of the record of a court, other than the
Incompetent, . i ■ i i • i
irrelevant court m which tho trial was m progress,
a°'i was received in evidence, over an objec-
immaterial. i- j_ij_*j_ cc ' j_j.*i j.
tion that it was incompetent, irrelevant
and immaterial." On appeal, the admission of the
evidence was sustained, the court saying that the
objection was insufficient to raise the question
whether the clerk's certificate, attached to the
paper, complied with statutory requirements.^
i^emarA;.— Inference, that "incompetent, irrele-
vant and immaterial" is a general objection, and
particularly, that it is bad as a statement of the
basis of opposition to evidence, based on the ground
of form.
Incompetent, irrelevant and immaterial. — In an
action brought against the directors of a
irrelevant' corporation, bascd on a failure to file its
and annual report, to recover the amount of a
immaterial. . , i i i x i •
promissory note, made payable to plam-
tiff's order and indorsed by the corporation, which
1 MacKinstry v. Smith, 16 Misc., 2 Huber v. Ehlers, 76 App. Div.,
351,354; citing Wallace jj. Vacuum 602,605.
Oil Co., 128 N. Y., supra.
52 CASES, ADJUDICATING ON OBJECTIONS.
note was given in settlement of a contract between
plaintiff and the maker of the note, for work to be
done by the former for the latter, it appeared, on
the trial, that this contract had been turned over
by the maker of the note, one of the parties to the
contract, to the corporation; and it became proper
for the plaintiff to show that the corporation had
entered into an engagement to reheve the maker
of the note from liability to make payments accru-
ing under the contract. The maker of the note
was called as a witness for plaintiff, and was asked,
on his direct examination: "Did the company agree
to relieve you from the payments which you were
to make?" To this defendants objected, as "im-
material, irrelevant and incompetent because it is
not the best evidence." The objection was sus-
tained, and the evidence excluded. On plaintiff's
appeal, the court declined to reverse the exclusion,
saying:
"This was objected to as immaterial, irrelevant
and incompetent because it is not the best evi-
dence. There was no evidence that the agreement
was in writing. The proper objection to the ques-
tion was that it called for a conclusion as to the
nature of the agreement. As the error in this rul-
ing was at best technical, the plaintiff is not in a
position to urge his exception. The information
sought for was relevant under a proper form of
question." ^
1 Witherow v. Slayback, 158 N. Y., 649, 662.
objection: incompetent, irrelevant, etc. 53
Remark. — The feature of this decision, which first
attracts notice, is that the ruhng of the trial court,
excluding the evidence, was held to be erroneous,
and yet that ruling was upheld, because the error
was technical. The only possible reason why the
exclusion of the evidence was error, is that the ob-
jection was sufficient. There is a clear intimation
that so much of the objection as referred to "the
best evidence" was bad. Hence "immaterial," or
"irrelevant," or both of those words, must have
been deemed sufficient. Those words do not seem
to have been distinguished, in the decision; and
the gist of the intimation, on the subject of the
quality of the objection, is believed to be, that
"irrelevant" was specific and (technically) accu-
rate — the evidence was irrelevant, but would have
been "relevant under a proper form of question."
Inasmuch, however, as plaintiff secured a new trial
on other grounds, these remarks, about evidence
and the objection thereto, were, doubtless, obiter.
Incompetent, irrelevant and immaterial. — In an
action brought by an employee of a con-
incompetent, . , . Jr .7
irrelevant tractor, against his master, to recover for
a""i injuries suffered in falling from a scaffold,
immaterial. •■ n i * i ' nn fi * i •
a witness tor plamtin, after evidence given,
tending to qualify him as an expert, was asked, on
his direct examination: (1) whether a scaffold, de-
scribed in the question, was a safe and suitable one
for a man of a specified weight; (2) what the cus-
54 CASES, ADJUDICATING ON OBJECTIONS.
torn was, in New York, with regard to building
scaffolds for men to work upon; and (3) what the
custom was as to the building of scaffolds, in New
York, by contractors, for carpenters to work upon.
Each time, the defendant objected to the evidence,
as "incompetent, irrelevant and immaterial;" and
the objection was sustained, and the evidence ex-
cluded. On plaintiff's appeal, the court reversed
the exclusion, saying:
"That the trial court erred in rejecting much
of this evidence, there can be no doubt. It was
not objected to or rejected because of the incom-
petency of the witnesses. If that had been the
objection, it would have been a fair matter for the
trial judge to determine, whether the witnesses had
the requisite knowledge or qualifications to give an
opinion, or state facts as experts, and would not be
a subject for review, unless against the evidence,
or without support in the facts appearing in the
case. But the rules determining the subjects upon
which experts may testify are questions of law.
The latter is the character of the rulings in this
case, as the only objection was that the evidence
was incompetent, irrelevant and immaterial, and
it was rejected upon that ground. Obviously, the
evidence offered was competent, relevant and ma-
terial." '
Remark. Inference, that "incompetent, irrel-
evant and immaterial" is not a good objection to
1 Jenks V. Thompson, 179 N. Y., 20, 24.
objection: incompetent, irrelevant, etc. 55
the competency of a witness, to give testimony.
The last sentence, quoted from the Opinion, is not,
it is supposed, to be taken as implying that "com-
petent," "relevant" and "material" have, each, a
separate and distinct meaning, and that the evi-
dence in question was possessed of each of the
qualities expressed by these adjectives, but merely
as asserting that the evidence was wholly unob-
jectionable. Hence no objection could have pre-
vailed, and no inference can be drawn from this
decision, as to whether "incompetent, irrelevant
and immaterial" is a general or a specific objection.
Incompetent, irrelevant and immaterial. — "To ob-
ject to the introduction of evidence, be-
Incompetent, ,
irrelevant cause irrelevant, incompetent and im-
a^d material, presents no question for review
immaterial, i i ,1 • 1 * , t*
on appeal, unless the evidence on its face
appears to be incompetent." ^
Remark. — This quotation from an Opinion of a
court of Indiana is almost identical with rule
"(b)," for the Report of the case shows that this
objection was overruled at the trial, and the ex-
ception held bad, on appeal. The closing reference,
to evidence on its face appearing to be incompe-
tent, is supposed to be equivalent to a reference
to "evidence in its essential nature incompetent,"
i. e., that which is manifestly and incurably inad-
missible.
1 McCloskey v. Davis, 8 Ind. App., 190, 197.
56 CASES, ADJUDICATING ON OBJECTIONS.
Incompetent, irrelevant and immaterial. — "Objec-
tions to evidence, that it is irrelevant, in-
Incompetent, . , - , ,
irrelevant coHipetcnt and immaterial, are generally
and too general, indefinite and uncertain to
immaterial. , , • ■ ji • j. jj i
present any question m this court. ^
Remark. — The Report of this case shows that
the trial court admitted evidence over the objec-
tion indicated, and this ruling was held, on appeal,
not to be erroneous, the evidence being proper for
a particular purpose, mentioned. Application of
rule "(b)."
Incompetent,irrelevant and immaterial. — In an ac-
tion brought, by the vendors against the
Incompetent, o ; ./ o
irrelevant vendec and his guarantor, to recover a
='"'1 balance of the stipulated price of goods
immaterial. ■* •* iii* iji in i
sold and delivered, the defence was de-
fect in quality, and failure to deliver in proper
packages. On the trial, one of the plaintiffs, called
as a witness in plaintiffs' behalf, was asked, on his
direct examination, whether the vendee assigned
any reason for not paying the full amount, and,
if so, what reason. The other plaintiff, in like
manner, was asked whether, at any time after the
contract was made, and the goods were delivered,
any offer was made, on the part of defendants or
either of them, to return the goods, or any part
thereof. An objection to this evidence, as "irrel-
evant, incompetent and immaterial," made on the
» Voss V. state, 9 Ind. App., 294.
objection: incompetent, irrelevant, etc. 67
part of the defendants, was overruled, and the
evidence admitted. On defendants' appeal, the
Supreme Court sustained the admission saying:
"The objections were general, against their ad-
missibility for any purpose whatever. It is clear
enough that, had the vendee been the sole defend-
ant in the action, the evidence objected to would
have been admissible as against him. If, as to
his co-defendant, a different rule would obtain, by
reason of the latter being a guarantor. only, a ques-
tion not necessary to consider, the objection should
have been limited accordingly, or an instruction
asked." *
Remark. — Inference, that "incompetent, irrele-
vant and immaterial" is a general objection, and of
no more efficiency than "inadmissible," or "im-
proper."
Incompetent, irrelevant and immaterial. — In an
action brought by a physician, to recover
Incompetent, e • i • -i-i
irrelevant for professional services, m which the
and Answer of defendant denied that plain-
tiff was duly quauned, registered and au-
thorized to practice medicine in the county, after
proof that plaintiff was a regular physician, de-
fendant offered in evidence a volume purporting
to be a register of physicians, to substantiate her
denial. To this plaintiff objected, as "incompe-
tent, irrelevant and immaterial;" whereupon the
1 Voorman v. Voight, 46 Cal., 392, 397.
58 CASES, ADJUDICATING ON OBJECTIONS.
evidence was excluded. On defendant's appeal,
this ruling was reversed, the court saying:
"The exclusion of the record was error. The
objection was that it was incompetent, immaterial
and irrelevant. No specific ground for the objec-
tion was given. The record was offered as, and
stated to be, a public register of physicians and
surgeons of Kings County, and this was not ques-
tioned. If the plaintiff had desired to raise a ques-
tion as to its being a public record, his objection
should have been specific, and. the defendant then
would have been called upon to prove the authen-
ticity of the volume by showing the source of its
production, and that it was kept by authority.
No such objection having been made, we must as-
sume it to have been waived." ^
/2emar A;. —"Incompetent, irrelevant and imma-
terial" is a general objection. The decision is an
application of a corollary of rule "(a)." The rul-
ing of the trial court, excluding the evidence upon
a mere general objection, was not upheld, on ap-
peal, because no "ground in fact existed for the
exclusion."
Incompetent, irrelevant, immaterial, etc. — In an
action to recover commissions for effect-
incompetent, . 1 !• 1 1
Irrelevant, uig a Sale of chattels, the purchaser hav-
immateriai, ing been Called as a witness for defendant,
and testified that plaintiff was not the
1 Acetta V. Zupa, 54 App. Div., 33, 34.
objection: incompetent, irrelevant, etc, 59
procuring cause of the sale, a witness for plaintiff
was allowed to testify to a statement made by the
purchaser, out of court, inconsistent with his testi-
mony, over defendant's objection to the evidence,
as "incompetent, irrelevant and immaterial, and
that it was not in the presence of defendant." On
defendant's appeal, the General Term of the New
York Conunon Pleas sustained the admission of the
evidence, saying:
"The objection was made upon the general
grounds of incompetency, irrelevancy and im-
materiality, the specific ground stated being that
it was not in the presence of defendant. This
latter ground presented no proper objection, and
the general grounds advanced did not call for the
exclusion of the evidence. It was properly ad-
mitted for the purpose of contradiction, and the
technical objection of incompetency, etc., cannot
be considered as raising the question of its proper
foundation where such objection could have been
obviated by proof upon the trial." *
Remark. — Inference, that "incompetent, irrele-
vant and immaterial" is a general objection. The
condemnation of this portion of the objection was
an application of rule "(b)"; and that of the re-
mainder of the objection, an application of rule
"(d)."
1 Frankel v. Wolf, 7 Misc., 190, 192.
60 CASES, ADJUDICATING ON OBJECTIONS.
Incompetent. Irrelevant. Immaterial. — "It may
inoom etent ^ niany CEses suffice to object to evidence
irrelevant, as Irrelevant, because the irrelevancy of
immaterial, ^j^g evidencc Is self-apparent, but it is in
no case a sufficient specification, to say that the
evidence is incompetent, because the reason for the
claim of incompetency can always be fully stated.
The general terms of objection, immaterial and
impertinent, are mere epithets, and, in their ap-
plication to evidence, have no legal meaning." *
Remark. — Inferences, that (1) "incompetent" is
general, (2) "irrelevant" is specific, and (3) "im-
material" is unmeaning.
Incompetent. Irrelevant and immaterial. — "It is
not enough to state that the evidence is
Incompetent; ^ *-'
irrelevant incompetent, or that it is immaterial and
and irrelevant. This much is implied in the
immaterial. r i r t * , . -r , •
mere tact of objectmg. . . . It is no'
answer to the proposition asserted by the author-
ities" (i. e., that objections, to be of any avail,
must be reasonably specific), "to say that the evi-
dence itself may reveal the objection, for this may
be said of all incompetent and irrelevant evidence,
when carefully scrutinized." ^
Remark. — Inference, that "incompetent," uttered
alone, equally with "immaterial and irrelevant," is
a general objection.
' Glenville v. St. Louis R. Co., 51 2 Ohio, etc., R. Co. v. Walker,
Mo. App., 629, 631. 113 Ind., 196, 200.
objection: irrelevant, immaterial, etc. 61
Irrelevant, immaterial, etc. — In an action for an
irreierant accountmg as to partnership transactions,
Immaterial, brought bj the personal representative of
^'"'- a deceased partner, plaintiff offered in
evidence certain letters written by her testator,
and letters written by testator's attorney, to de-
fendant, asking for information concerning the
assets and Uabilities of the firm, and containing
propositions with a view to an adjustment and a
settlement ; to most of which letters there had been
no reply. The letters were received in evidence,
over defendant's objection that they were "irrel-
evant, immaterial and declarations in plaintiff's
own favor." On defendant's appeal, the court sus-
tained the admission of the evidence, saying:
"Some of these letters to which no reply was
made may be subject to the objection that they
contain declarations in favor of the plaintiff; but
it is to be borne in mind that this is an equity suit,
in which a reversal should not be had for an error
in the admission of evidence unless it was manifestly
prejudicial. The plaintiff had a right to show that
he endeavored to adjust the matter before bringing
the action, as this would have a material bearing
upon the question of costs. We are of opinion
that, although the reception of some of the letters,
without limiting their bearing, may have been
erroneous, it does not constitute substantial error
or require a reversal." ^
' Jackson v. Jackson, 100 App. Div., 385, 388.
62 CASES, ADJUDICATING ON OBJECTIONS.
Remark. ^-Here, apparently, "irrelevant" and
"immaterial" went for nothing. The rest of the
objection was specific and accurate; and the de-
cision sustaining the admission of evidence over a
good objection is valuable as an illustration of the
rule that, in equitable actions, less strictness is
observed, in condemning the admission of objec-
tionable evidence, than in those tried with a jury.
No ground of objection stated. — In an action
No ground b^ought to recover damages for injuries
of objection suffered by plaintiff, through falling in
stated. ^Yie street of a city, in consequence of de-
fendant's negligence, physicians, called for plain-
tiff, were permitted to testify as to the cause of
plaintiff's ill-health, defendant opposing the in-
troduction of the evidence by using the words "ob-
jected to." On defendant's appeal, the court sus-
tained the admission of the evidence, saying:
"These objections were general, and failed to
specify any grounds. This court has held, that,
where the objection to evidence is general, and it
is overruled, and the evidence is received, the rul-
ing will not be held erroneous, unless there be some
grounds which could not have been obviated had
they been specified, or unless the evidence in its
essential nature be incompetent. . . . But the
questions addressed to the physicians, caUing for
their opinions as to whether the physical condi-
tion in which they found the plaintiff to be, upon
objection: ground not stated. 63
their examination of her, could have resulted from
a fall, were not objectionable and iafringed upon
no rules of evidence." *
/Pernor A;. —AppUcation of rule "(b)."
No ground of objection stated. — "In no instance
No ground ^^^ ^^^ ground of objection to evidence
of objection offered stated, which omission renders
stated, ^j^g exception valueless for purposes of re-
view, the evidence admitted being intrinsically
competent." ^
Remark. — ^This passage from an Opinion has been
quoted because of its use of the expression "evi-
dence intrinsically competent," which is supposed
to be equivalent to "evidence not in its essential
nature incompetent.
jy
No ground of objection stated. — In an action to
No ground Tecover damages for injury suffered at a
of objection rallroad crossing, two physicians, called
stated, ^g -^yitnesses for plaintiff, were asked, on
their direct examinations, to testify as to future
consequences of the injury. Fourteen times de-
fendant's counsel interposed the words, "objected
to," and, in each instance, the evidence was re-
ceived. On defendant's appeal, the court re-
versed a judgment for plaintiff, on the ground of
error in the admission of the evidence; and plain-
tiff's motion for a re-argument, based on the alleged
1 Turner v. City of Newburgh, ' Adams v. Burr, 13 Misc., 247,
109 N. Y., 301, 308. 249.
64 CASES, ADJUDlCATI]*vG ON OBJECTIONS.
insufficiency of the objections, was denied, the court
saying:
"In deciding upon the appeal in this case, it did
not escape our attention that the objections to the
admission of the evidence, which we held to be
incompetent, were general. That point was dis-
cussed in consultation, but we consider that the
evidence was in its nature inadmissible, as it re-
lated to speculative and conjectural possible future
consequences which might be apprehended from
the injury, and how long after the injury such con-
sequences might be developed. The course of the
examination shows that the ground of the objec-
tions could not have been misunderstood, and if it
had been specified in the objections, could not have
been obviated." ^
Remark. — Application of rule "(b)." The pas-
sage quoted is valuable as indicating, with satis-
factory clearness, that the words, "in its essential
nature incompetent," in that rule, are the equiva-
lent of the words, "in its nature inadmissible;"
whence an inference that incompetency, predicated
of evidence, without qualification, is nothing more
nor less than inadmissibility.
No ground of objection stated. — In an action for
No ground hbcl, plaintiff, testifying in his own behalf,
of objection was allowed to give evidence tending to
stated. ghow the amount of damage caused to his
1 Tozer v. N. Y. C. & H. R. R. R. Co., 105 N. Y., 617, 659.
objection: wrong' specification. 65
business, over objections, by defendant, which are
stated, in the record, thus: "Defendant's counsel
objects." On defendant's appeal, the admission
of the evidence was sustained, the court saying:
"The objections of the defendant's counsel, to
the questions put, were general in their character,
and stated no specific ground upon which the testi-
mony should be excluded. The counsel for the
appellant claims that the proof of special damages
was not admissible under the pleadings because it
was not properly pleaded. Had this point been
taken on the trial, and the objection held to be
valid, the judge had the power to allow an amend-
ment of the pleadings upon such terms as would
be proper and just, and, had he done so, the ob-
jection might have been obviated. The rule is
well established, that, where there is a general ob-
jection to evidence, and it is overruled, and the
evidence is received, the ruling will not be held
erroneous, unless there be some grounds which
could not have been obviated, or unless the evi-
dence in its essential nature be incompetent." '
Remark.— Follows Tooley v. Bacon, supra.^ Ap-
plies rule "(b)."
Wrong specification. — In an action brought to
recover on a policy of marine insurance,
■^™"e in which an issue was raised as to the
specification.
value of the vessel concerned, an expert
1 Bergmann v. Jones, 94 N. Y., 2 70 N. Y. 34.
51, 58.
5
66 CASES, ADJUDICATING ON OBJECTIONS.
witness was called, for plaintiff, and permitted, on
his direct examination, to testify as to the value,
over defendant's objection "that the witness had
no personal knowledge of the vessel." On de-
fendant's appeal, the admission of the evidence
was sustained, the court saying:
"It was not a sufficient objection to the com-
petency of this witness, that he had no personal
knowledge of the ship. An expert is quahfied to
give evidence as to things which he has never seen.
He may base an opinion upon facts proved by other
witnesses, or upon facts assumed and embraced
within the case. . . . There was no objection
that the witness did not have sufficient facts be-
fore him, upon which to base his opinion as to the
value of the ship. The sole objection was, that
he did not have personal knowledge of the vessel.
It seems to have been assumed that the character,
condition and quality of the vessel were sufficiently
proved, and that all the conditions existed, which
would "qualify the witness to give an opinion as to
value, except that of personal knowledge ; and that,
as we have seen, was not necessary. If the de-
fendant had requested that the facts appearing in
the evidence should be assumed, and stated in a
hypothetical question, it is fair to assume that his
request would have been complied with." '
Remark. — ^AppUcation of rule "(d)."
1 Slocovich V. Orient Mut. Ins. Co., 108 N. Y., 56, 64.
objection: immaterial, irrelevant, etc. 67
Immaterial. Irrelevant. — In an equitable action.
Immaterial, brought to Set asidc transfers of personal
Irrelevant, property, the court, on appeal, referred to
certain evidence admitted on the trial as follows :
"It may be, that some of this testimony was im-
material upon the issue, but the bulk of it was not
only material and relevant, but important as bear-
ing upon the issue litigated. So far as it was im-
material or irrelevant to the issue, it did not work
harm to the defendants. . . . There is noth-
ing, therefore, in the rulings upon the admissibility
of evidence upon the trial which calls for reversal
of the judgment." ^
Remark. — Possible inference, that "material"
and "relevant," also "immaterial" and "irrele-
vant," as applied to evidence, are, severally, sub-
stantial synonyms. Also, a reminder that, in
equitable actions, an inference of prejudice from
the allowance of immaterial evidence is not readily
indulged.
Immaterial. Irrelevant. Incompetent. — In an ac-
immateriai. ^lou brought by a business corporation,
Irrelevant, successor to SL brewlug firm, a family af-
Incompetent. /» ■ „ • j. j."L i j t '
fair, against the personal representatives
of a deceased member of the firm and of the family,
to recover moneys alleged to have been received
by said decedent, for the account of the firm, and
not accounted for, and moneys alleged to have been
1 Fox V. Erbe, 100 App. Div., 343, 348.
68 CASES, ADJUDICATING ON OBJECTIONS.
obtained by him, from the firm, by false repre-
sentations (one of the two defendants having died
pendente lite, and before trial), the Answer to the
Complaint contained, besides a general denial, al-
legations purporting to be by way of defence,
which, however, were not germane to the real issue,
but related to transactions between F., an attorney,
and the surviving defendant, individually, and to
acts of the plaintiff corporation in paying salaries
to its officers. As tending to sustain those irrele-
vant allegations of the Answer, defendant was per-
mitted to introduce evidence of an agreement be-
tween F. and said surviving defendant, who was a
stockholder, under which the former purchased,
for $150,000, the stock and bonds of the latter, of
the par value of $550,000; also evidence to the ef-
fect that F., who had been elected president of the
corporation, received a salary of $15,000, a year,
afterwards increased to $25,000, and that his
brother-in-law received $5,200, a year, as vice-
president, etc. To this evidence plaintiff objected,
as "immaterial." The trial court overruled the
objection, saying: "It may have no bearing at all,
but I think it proper to allow it in the case for what
it may hereafter be worth." A verdict and a judg-
ment having been rendered in favor of defendant,
the Appellate Division, on defendant's appeal, sus-
tained the admission of the evidence because the
objections to the improper evidence were regarded
as insufficient, saying:
objection: immaterial, irrelevant, etc. 69
"The basis of the objection was, that it was im-
material to any issue presented by the pleadings.
The plaintiff, however, nowhere claimed, upon the
trial, that it was prejudiced by the introduction
of such testimony. Its sole complaint was that it
was immaterial as bearing upon any issue. Upon
this appeal, it is argued, that it was not only im-
material, but incompetent, improper and preju-
dicial. It was the duty of counsel to call the court's
attention to the ground of objection. Had the
court's attention been called thereto, doubtless it
would have excluded it, or it might have been
withdrawn. The question as now sought to be
presented was not raised. When the objection was
made that the testimony was immaterial, it was
conceded to be competent." '
Remark. — A noticeable feature of this Opinion is,
the intimation that, where counsel objects to evi-
dence as "immaterial," and is overruled, and after-
wards urges, on appeal, that the evidence was "in-
competent, improper and prejudicial," he makes a
new contention, i. e., one which he did not bring to
the attention of the court below. It might have
been supposed that a presumption of prejudice
arises from the allowance of immaterial evidence
over an objection to it, taken on the ground of its
immateriality; and it is difficult to see how urging
incompetency and impropriety involved a change
of base.
1 Groh's Sons v. Groh, 80 App. Div., 85, 94.
70 CASES, ADJUDICATING ON OBJECTIONS.
On the further appeal, the highest Court re-
versed the admission of the evidence, declaring
the objection taken on the trial sufficient, and
saying:
"The judgment was affirmed because the objec-
tions to the improper evidence were regarded as
insufficient. We entertain a different view. When
evidence is immaterial, and is objected to on that
specific ground, the objection is well taken, because
it points out the precise ground upon which the
evidence should be excluded, and that is all the
objector is required to do. It frequently happens
that evidence which is immaterial is also incom-
petent and irrelevant, and in that event it may
properly be objected to on all or either of these
grounds. It is equally true, that evidence may be
incompetent but neither immaterial nor irrelevant,
or vice-versa, in which case the objection may and
should be urged upon the precise ground that pro-
vokes it. And the reason of the rule is plain. If
evidence is admissible upon one ground, and is ob-
jected to upon another ground, the trial court is
not advised of the true reason for its rejection, and
the objector is held to have waived it. In the case
at bar, some of the evidence objected to was im-
material, irrelevant and incompetent. It might
have been objected to on all or each of these
grounds. It was objected to only as being im-
material. It was, however, so utterly and clearly
immaterial, as to point out clearly its incompe-
objection: immaterial 71
tency as well as its irrelevancy. The objection
having been taken upon a ground that was proper
and precise, and being obviously suggestive of the
other two grounds upon which the evidence might
have been excluded, we think the cases cited by the
learned Appellate Division in support of the con-
clusion that the objections herein were not properly
taken have no application." ^
Remark. — The observations which will be made
on this decision of the highest Court will be com-
prised under two heads:
First, as to what was held. — It is necessary to
assume a meaning of "material," and of "imma-
terial." Accordingly, the latter term will be as-
sumed to mean, as applied to evidence, that which
has no bearing on the issue. Such an objection
manifestly goes to the substance. Here, then, it
is squarely held, that, when proposed evidence is
"immaterial," an objection employing (only) that
word is specific, and well taken. Does this decision
imply, or even leave room for an inference that, if
evidence that is material were objected to as
"immaterial," the objection would not be specific?
It is believed not. If evidence really material
were objected to as immaterial, the objection
would not be well taken, but its specific character
would not be altered. An illustration wiU de-
monstrate this. Suppose that evidence is objected
to on the ground that it does not come within the
1 Id., 177 N. Y., 8, 14.
72 CASES, ADJUDICATING ON OBJECTIONS.
pleadings, and a proper construction of the plead-
ings leads to the conclusion that the objector is
mistaken. Obviously, the objection is specific,
notwithstanding the error in the contention. A
specific objection is one which points out the precise
ground upon which it is contended that the evi-
dence ought to be excluded. So that we have,
at length, an explicit and authoritative decision
that "immaterial," as an objection to the admis^
sion of evidence, is always specific.
Second, as to other intimations, to be gathered
from this Opinion. — The statement, that it fre-
quently happens, that evidence which is imma-
terial is also incompetent and irrelevant, properly
implies that such is not invariably the case; i. e.,
there is evidence which is immaterial and yet can-
not be said to be both incompetent and irrelevant.
But whether this last proposition involves a doc-
trine that there may be evidence which is imma-
terial but not irrelevant, qucere? Again, it is said,
that evidence may be incompetent, but neither
immaterial nor irrelevant, or vice-versa. It is diffi-
cult to determine what the converse proposition,
indicated in this alternative is. The most man-
ageable interpretation of the entire expression is,
that (1) evidence may be inadmissible, for some rea-
son, which, nevertheless, is not essentially foreign
to the issue, and (2) evidence may be essentially
foreign to the issue, and yet not open to objection
as violating any technical or formal rules affecting
CONCLUSIONS, RELATIVE TO OBJECTIONS. 73
its admissibility. A condition of this interpreta-
tion is a concession of the substantial identity of
materiality and relevancy. It is further said:
"some of the evidence objected to was so utterly
and clearly immaterial as to point out clearly its
incompetency as well as its irrelevancy." This
would appear to imply that, if the immateriality
had not been so extreme and patent, neither its
incompetency nor its irrelevancy might have been
clearly pointed out; but whether this involves a
doctrine, that immaterial evidence is ever relevant,
is uncertain. The embarrassment experienced, in
endeavoring to reach satisfactory conclusions as
to the real import of these judicial intimations, is
due the circumstance that the Opinion contains no
definition of either of the words, incompetent,
irrelevant and immaterial, and no unmistakable
indications of the respective contents of those ad-
jectives. Finally, in the assertion, that some of
the evidence, of which it is said that it was im-
material, irrelevant and incompetent, "might have
been objected to on all or each of these grounds,"
is contained a caution — perhaps not imperative —
to counsel, not to use all three of the words, in ob-
jecting, unless he means them all.
It remains to gather the results of the foregoing
Conclusions Gxamiuation of cases adjudicating upon
relative to particular objections, and those of the
objections, preliminary study, and attempt to express
them in the form of practical conclusions upon the
74 CONCLUSIONS, BELATIVE TO OBJECTIONS.
subject of the mode of objecting to evidence, in-
cluding a question as to the propriety or advisa-
bihty of employing the formula, "incompetent,
irrelevant and immaterial."
Conclusions :
The following propositions are submitted, as
inferable from the weight of authority:
1. All possible objections to evidence, under our
system, are divisible into two radically
Two classes ,. . . , i , , ,
of distmguishable classes: viz.: First, those
objections, which asscrt an inherent lack, in the pro-
posed evidence, of a legal bearing on the issue;
Second, those which assert that the admission of
the evidence would violate one or more of the
numerous rules (some substantial, and some formal)
which have been adopted, restricting admissibility
on other than such logical grounds.
2. "Incompetent," as an objection to evidence,
Incompetent ^^ broadly general, means neither more
as an nor less than "inadmissible" or "im-
objection. proper," and is co-extensive with both of
the aforementioned classes of objections; but con-
tains no intimation as to which class it operates
under, in any given case, and none as to which of
the many possible items, if any, imder the second
class is intended.
CONCLUSIONS, RELATIVE TO OBJECTIONS. 75
3. "Immaterial, as an objection, is identical with
"irrelevant"; each belonging exclusively
or iireievant, to the former of the two aforementioned
»=»° classes of objections. Each term, when
objection. gjj^pjQyg(j [j^ objecting to evidence, marks
the objection as specific.
4. Where the real contention is, that proposed
Id. evidence has no bearing on the issue,
"immaterial" (alone), or "irrelevant" (alone), is
a good, and the only proper univerbal, objection:
and to use both words would be simply tautologi-
cal.
5. It is never of any avail to say "incompetent,"
"inoompe- ^^ objectlug) to do so is merely equiva-
tent-is lent to saying: "I object." And this
nugatory. j^Q^^g^ whether "incompetent" is used
alone, or in connection with other descriptive
terms, or with explanations.
6. Material (or relevant) evidence is that, be-
tween which and the fact in issue, there
Essence of . , '
materiality IS a relatiou of cause and effect, or of
°' concomitance according to the course of
general experience. To object to pro-
posed evidence, as irrelevant (or immaterial), is
to assert that no legally recognizable relation of
cause and effect, or of concomitance, exists be-
tween the evidentiary- and the issue-fact; or that
too many intermediary causes and effects render
the evidence "too remote"; or that the concomi-
76 CONCLUSIONS, RELATIVE TO OBJECTIONS.
tance is too infrequent to justify a legal infer-
ence.
7. The expression "incompetent, irrelevant and
"incompe- immaterial" should not be uttered, as
'«"*• stating an objection, both for the reason
"In™" above given (5), and because to use that
immaterial" expresslou is to comblue a general and a
objectionable, gpedfic objeCtloU.
8. Whenever there is no contention, that pro-
posed evidence has no bearing on the issue, no one
word (unless "hearsay" be an exception) is avail-
able; but the objector should particularize the ex-
clusory rule which he considers would be violated
by the admission: in doing which there is no com-
pulsion to employ technical language, and no dan-
ger in being inartistic, diffuse or even repetitious
in elaboration.
9. "Incompetent, irrelevant and immaterial" is
Id. neither a general nor a specific objection.
It is a combination of the two kinds; and the cases
seemingly to the effect that it is general, are ex-
plainable as referring to attempts to indicate, by
this phrase, a ground of objection coming within
the second of the two classes suggested in proposi-
tion "1," supra; "incompetent" properly covering
both classes, and the two other attributives not
being within the second class.
10. It is suggested: Never say "incompetent".
Multifarious- for it is uscless ; never say "irrelevant and
nes8. immaterial", for it is repetitious.
CONCLUSIONS, RELATIVE TO OBJECTIONS. 77
11. The objections most likely, when overruled,
Most ^^ ground a good exception, have no
available stcrcotyped or technical form. The cri-
objections. ^gpJQj^ ^f availablHty is, that, in a manner
however informal and diffuse, they indicate clearly
the exclusory rule sought to be enforced.
SECTION III.
Striking Out and Disregarding Evidence.
Under this head, a reference will be made to
General decisions wWch, at first sight, might be
description considered paradoxical, holding, as they
contents of scem to do, that objectionable evidence
this section, can bc eliminated at the instance of a
party who offered no opposition to its introduction
when it was offered, though a ground of objection
to such introduction was, at that time, discernible.
The cases first to be cited will be such as appear
to be in accord with a famihar, general rule.
In an action brought by an administrator, to
Necessity recover for services rendered by the in-
fer objecting testate, to defendant, the latter was ex-
where ,
ground is amined urithout any objection, on the part
apparent, ^f plaintiff, as to matters involving per-
sonal communications with the decedent. There-
after, the referee struck out this testimony, on the
ground that defendant was incompetent so to tes-
tify, under a familiar statute. On defendant's ap-
peal, the court reversed this action of the referee,
saying:
"Any and every objection which could be taken
78
MOTION TO STRIKE OUT EVIDENCE. 79
to his testifying, or to his testimony, was apparent
on the face of the proceedings; and yet, at a sub-
sequent hearing, the referee struck out the testi-
mony, on the alleged ground that the defendant was
incompetent to testify. This will not do. A party
against whom a witness is called, and examined,
cannot lie by, and speculate on the chances, first
learn what the witness testifies, and then, when he
finds the testimony unsatisfactory, object either
to the competency of the witness or to the form or
substance of the testimony. It is not the case,
which sometimes occurs, where, on cross-examina-
tion, or in a subsequent stage of the trial, the in-
competency of evidence appears, though appar-
ently competent when given, e. g., oral proof of an
agreement, which on cross-examination appears to
have been in writing." '
Remark. — This passage from an Opinion appears
to lay down the rule that, where there is any ground
of objection to evidence which is apparent when
the evidence is offered, a party interested in ex-
cluding it must object, then and there, at his peril.
On the trial of an action brought against an
indorser of a promissory note, the only
Motion to • 1 • 1
strike out material issue presented was, whether no-
evidence not tice of presentment to the makers, for
completed, i i i i i i
payment, had been properly served on
the defendant. The statute, in force, made a no-
1 Quin V. Lloyd, 41 N. Y., 349, 354; Dec, 1869.
80 MOTION TO STRIKE OUT EVIDENCE.
tary's certificate of the presentment, hy Mm, for
payment, and of protest for non-payment, pre-
sumptive evidence of the facts stated therein,
unless defendant (indorser) annexed to his plea an
affidavit denying receipt of notice of non-payment.
Defendant had served an affidavit of such denial on
plaintiff's attorney, but had not annexed it to his
Answer to the Complaint. Plaintiffs opened their
case by offering a notary's certificate, stating that
the note was presented to the maker, for payment
(which was refused), and that thereupon he, the said
notary, did protest the same; which certificate was
received, over defendant's objection that his An-
swer was an affidavit, within the meaning of the
statute, and, if not, that an affidavit (which did
not refer to the Answer) had been served, and
issue had been joined, and noticed for trial by both
parties. The notary having been afterwards called,
as a witness for plaintiffs, and having testified that
the presentment was made, not by him but by his
clerk, defendant moved "to strike out of the evi-
dence the said certificate, on the ground that the
note in question was not presented by said notary,
and the certificate was therefore false "; which mo-
tion was denied. On defendant's appeal, the court
sustained the denial of this motion, saying:
"It is claimed .... that the sworn An-
swer of the defendant was an affidavit within the
meaning of the statute. This claim is not well
founded. . . . The court did not, therefore,
MOTION TO DISREGARD EVIDENCE. 81
err in receiving the certificate in evidence at the
time it was offered. Afterward, it appeared that
the notary did not in person present the note for
payment, but that it was done by his clerk. Hence
the certificate was void, and could with propriety
have been stricken out upon the motion of the de-
fendant. But where evidence has been properly
received, I do not understand that the party against
whom it has been introduced has the absolute right
to have it stricken out when its effect has been
destroyed by other evidence. His proper course
is to protect himself against the effect by a proper
charge from the court. In this case the defendant
should have requested the court to charge the jury
that the certificate was no evidence to be consid-
ered by them upon the question of presentment of
the note, and if this had been refused he would
have had a good exception. But the certificate was
entirely ignored in the charge to the jury. And,
on the question of presentment, the court put the
case to the jury upon the other evidence. Hence
no error was committed in refusing to strike out
the certificate upon the motion of the defendant." *
Remark. — This decision is supposed to state the
doctrine that, where, on a trial by jury, evidence,
properly received, is afterwards discovered to be
illegal (1) the court has a discretion to grant or
refuse a motion to strike it out, and (2) the party,
against whom it is offered, in order to secure a
1 Gawtry v. Doane, 51 N. Y., 84, 89; Sept., 1872.
6
82 NECESSITY OF TIMELY OBJECTION.
good exception, must move for a direction, to the
jury, to disregard it. To the unskilled mind it
may be a difficult problem to distinguish between
the effect of striking out evidence, and directing
the jury to disregard it. Manifestly, the former
expedient is the only one available in trials by
the Court. The closing sentences in the quotation
from the Opinion seem, however, to impress the
statement of the general doctrine with the char-
acter of an obiter dictum, as it was, apparently,
deemed necessary or proper to point out the way
in which the case was given to the jury, as a
ground for sustaining the trial court's refusal to
strike out the evidence.
"A party may .... waive the objection
to ... . incompetent evidence by
Timely . . , . .
objection omittmg to make any objection. . . .
generally Usually the objcctiou must be made when
necessary. 1 1 • x j. ' i • _a» i
the mcompetent evidence is oflered. . .
But if the objection be not made at the time, and
the omission be shown to have been from mistake
or inadvertence, the trial court may permit it to
be made at any time before the close of the trial,
by motion to strike out the incompetent evidence.
. . . . When the objection is not made at the
time the evidence is offered or given, it is in the
discretion of the trial judge to permit it to be
made at a later stage of the trial." ^
1 Miller v. Montgomery, 78 N. Y., 282, 286; Sept., 1879.
STRIKING OUT, AND DISREGARDING EVIDENCE. 83
Remark. — This quotation, it will be observed,
makes no reference to a motion for a direction, to
a jury, to disregard evidence, as distinguished from
a motion to strike out; and the intimation is that
the discretionary power of the court, to grant a
motion to strike out, is properly exercised only
where the omission to interpose a timely objection
to the admission of the evidence arose from mis-
take or inadvertence.
In an action brought against defendant as
Distinction ludorser of a promissory note, dated
between April 4th, 1870, for $2,000, made by B.,
^'"aTd""' payable in thirty days, to the order of
disregarding defendant, purporting to have been in-
evidence. (joj-gg^j ]^y j^ij^^ ^ud alleged to have been
duly transferred to plaintiff, the defence was, that
the indorsement was a forgery. On the trial, it
appeared that B. had procured a prior note, dated
March 28th, 1870, for the same amount, made by
him, and having thereon defendant's name as in-
dorser, to be discounted at a bank which had given
to B. drafts for the amount; that, the note last
mentioned falling due, B. offered to the bank the
first mentioned note to be discounted in renewal
of the due note, which the bank declined; that
thereupon B. made a third note, for the same
amount, dated April 4th, 1870, payable, in fifteen
days, to the order of plaintiff, who indorsed the
same; which last mentioned note the bank dis-
84 STRIKING OUT, AND DISREGARDING EVIDENCE.
counted, B. turning over the note in suit to plain-
tiff as security. This fifteen-day note was paid by
plaintiff at maturity: whence the action. Plain-
tiff was permitted to introduce the bank-drafts in
evidence, over an objection by defendant's coun-
sel, to the same, as "irrelevant, incompetent and
immaterial, and on the ground that there is no
proof that they went into Mr. King's hands." On
defendant's appeal, the court sustained the ad-
mission, holding that the evidence was competent
as part of the res gestw, and also as laying the
foundation for other evidence which might con-
nect defendant with the transaction, and as show-
ing that the note which formed the consideration
of the alleged indorsement had a valid inception;
also that the objection of lack of "proof that they
went into" (defendant's) "hands" went to the
order of proof simply, which was in the discretion
of the Court. After the drafts were admitted,
defendant moved "to strike out the drafts and all
evidence in regard thereto," which motion the
trial court denied. On the appeal, the Court of
Appeals held that "this did not constitute a ground
for a legal exception; that, the evidence having
been properly received, it could be retained at the
discretion of the court, and the remedy of the party
was to ask the Court to instruct the jury to dis-
regard it." ^
Remark. — This case has been given on account of
1 Marks v. King, 64 N. Y., 628, 629; Feb., 1876.
STRIKING OUT, AND DISREGARDING EVIDENCE. 85
the pointed distinction made by it between a motion,
in a jury cause, to strike out evidence, and a motion
for instructions, to the jury, to disregard it. Some of
the facts are incorrectly stated in the memorandum
of the case; ^ a circumstance which renders the
report uninteUigible. In addition to this defect in
the report, the head-note is incorrect, in including
evidence admitted "without objection," as that
question was not presented. The quotation of
that head-note, in the Opinions in subsequent
cases, as a statement of what was decided, has
tended to create confusion in the law. The printed
head-note reads as follows:
" Evidence admitted upon a trial by jurj% either without
an objection or properly under objection, which for any rea-
son should not be considered by the jury, is not necessarily
to be stricken out on motion, but may be retained in the dis-
cretion of the court; the remedy of the party is to ask for
instructions to the jury that they disregard it."^
In an action on an indictment for assault, the
district attorney offered certain promis-
Motion for , i i i /• , •
instruction, ^ory notes and a book of accounts m evi-
to jury, to dence, and, no objection being made, they
eyTdToe, ^^^^ recelved and read. The complain-
when the ant and other witnesses were then called,
only remedy, g^^^ g^^^ testlmouy tending to show
that the notes were forgeries, and entries from
the book were also read for the same purpose.
' Iii- 2 The italics are not in the origi-
nal.
86 STRIKING OUT, AND DISREGARDING EVIDENCE.
Afterwards defendant's counsel moved that the
court direct the jury to disregard all the evidence
tending to establish the forgery of the notes;
which motion was denied. On appeal, the denial
of this motion was affirmed, the court saying:
"The notes and book were offered and received
in evidence without objection from the defendant's
counsel. The evidence of the complainant, to the
effect that the notes were forgeries, ....
had been given without objection, and the witness
had been cross-examined in regard thereto. . . .
After such acquiescence .... it is too late
to ask that the objectionable matter be stricken
out. If any objection to it could fairly be made,
it was as apparent when the evidence was offered
as after it was in, and by not objecting to it when
offered, the defendant took the risk of having the
court, in its discretion, refuse to exclude it. In
Marks v. King, 64 N. Y., 628, it was held that
evidence admitted upon a trial by jury, either
without an objection, or properly under objection,
which for any reason should not be considered by
the jury, is not necessarily to be stricken out on
motion, but may be retained in the discretion of
the court. And it was also held that the remedy
of the party is to ask for instructions to the jury
to disregard it. This decision was followed in
Platner v. Platner, 78 N. Y., 90, and the question
now before us is directly within both cases. The
attention of the trial court was not again called
MOTION TO STRIKE OUT EVIDENCE. 87
to the subject, nor was any request made for in-
structions in regard to it." ^
Remark. — The tenor of this Opinion seems to
imply that, in a case tried with a jury, a motion
for instructions to the jury to disregard evidence,
under the circumstances referred to, is the only
remedy of a party who seeks to avoid the effect of
evidence which has been admitted.
In an action on a promissory note, made by
The same, defendants, payable to plaintiff or bearer,
one of the defendants, being called as a witness on
the part of defendants, was asked, on his direct
examination, to state a conversation about the
note, had between witness and plaintiff's husband,
since deceased; whereupon the following colloquy
occurred, as shown by the Case on Appeal:
Plaintiff's counsel: "Objected to, as hearsay,
irrelevant and improper, and on the grounds that
it is not shown that Stephen Platner" (plaintiff's
deceased husband) "had any authority to act for
the plaintiff, and also is a violation of Section 399."
The Court: "1 will hear the proof, and if the
necessary proof of his authority isn't made out, I
will take care of it."
At the close of the evidence on this subject,
plaintiff moved to strike out the testimony as to
this conversation; which motion was denied. On
1 Pontius V. People, 82 N. Y., are not in the original. See p. 85,
339, 346; Oct., 1880. The italics supra.
88 MOTION TO DISREGARD EVIDENCE.
plaintiff's appeal, the Court of Appeals upheld the
trial court, in this denial, saying:
"The testimony was allowed on the notion that
knowledge and acquiescence would be brought
home to the plaintiff. It may be conceded that
this was not done. It may be conceded, also, that,
when the motion to strike out was made, the de-
fendants had made an end of their evidence as to
the .... note. The motion to strike out
was then made. It was not renewed, nor the mat-
ter again noticed. It should have been. 'Evi-
dence admitted either without objection, or prop-
erly on objection, which for any reason should not
be considered by the jury, or affect the result, is not
necessarily stricken out, but may be retained in
the discretion of the court, the remedy of the party
being to ask for instructions to the jury to disre-
gard it.' There was no request to instruct the jury
to disregard the evidence, and no exception to the
charge of the judge in respect to it, and the weight
to be given to it. See Opinion of Allen, J., in
Marks v. King, 64 N. Y., 628." '
Remark. — Here it is squarely held that, in a jury
cause, a motion to strike out evidence is not avail-
able as a substitute for a motion for instructions,
to the jury, to disregard it. The quotation, in
the Opinion, of the erroneous head-note of Marks
V. King did no harm, as, in both cases, there was
an objection taken to the evidence, when offered.
iPlatner v. Platner, 78 N. Y., 90, 101.
STRIKING OUT INCOMPETENT EVIDENCE. 89
"It is entirely clear that a party who has sat
Speculative ^y, duHng the reception of incompetent
silence evidence without properly objecting there-
eondemned. ^^^ ^^^ j^g^g ^l^^g taken hls chance of ad-
vantage to be derived therefrom, has not, when
he finds such evidence prejudicial, a legal right to
require the same to be stricken out. But even if
the referee or surrogate could, in their discretion,
strike out any of the testimony, no request was
made that either should do so." ^
Remark. — This dictum clearly condemns the prac-
tice of speculative silence, where evidence is offered,
and refers exclusively to a motion to strike out; this
being the only possible motion, as there was no jury.
In an action brought by an Illinois corporation,
to recover an unpaid subscription to
Motion t'^ T -,
strikeout stock, the only substantial question was
uncompleted g^ ^q plalutiff's exlsteuce as a corpora-
tion. To prove this, plaintiff offered cer-
tain papers from the office of the Secretary of
State, of Illinois, but there was no proof that, by
the law of Illinois, these papers established plain-
tiff's corporate character. To this evidence de-
fendant made specific and elaborate objections,
which were overruled. On defendant's appeal
from a judgment which was rendered in plaintiff's
favor, the Court refused to reverse, saying:
"The documents from the office of the Secretary
1 Matter of Accounting of Morgan, 104 N. Y., 74, 86; Jan'y, 1887.
90 SPECULATIVE SILENCE.
of State of Illinois were received in evidence against
the defendant's objection and exception. In order
to give them proper effect, they should have been
supplemented by proof of the law of that State,
but they were competent as part of the chain of
proof on the^ issue. When the plaintiff failed to
follow them up by proof of the law which gave
them efficacy, a motion to strike out was the de-
fendant's remedy, and no such motion was made.
When evidence tending to prove a material fact in
issue is received under objection, and which re-
quires proof of other facts to make it complete,
which have not been supplied, its presence in the
record is no ground for reversal, in the absence of
a motion subsequently to strike it out. The fail-
ure of the plaintiff, to supplement the documentary
evidence with proof of the law, should have been
raised by such a motion, as the ruling admitting
the papers was correct when made." *
Remark. — Decision, that when certain links, only,
in the chain of proper proof are admitted, at the
instance of a party, his opponent's only remedy,
for a failure to complete the proof, is a motion to
strike out.
"It will not do to take a general objection which
is not good, or speculate upon what a
Speculation ., . ... , i .1 -f i
condemned, witucss may testify to, and then, if not
agreeable to the one against whom the
1 U. S. Vinegar Co. v. Schlegel, 143 N. Y., 537, 544; Nov., 1894.
STRIKING OUT, AND DISREGARDING EVIDENCE. 91
testimony is given, move to strike out such testi-
mony, or, upon appeal, seek to destroy the effect
thereof, by presenting specific objections which
would have been good had they been presented at
the time the testimony was given." '
Remark. — Condemnation of speculative silence,
or generality of objection, when evidence is offered.
No reference to motion for instructions, to jury, to
disregard.
"In most cases, an abstract consideration of the
Motion to several evidential facts would not suffice
strikeout, ^Q gj^Q^ ^j^g^j, relevancy or materiaUty to
and for *' "^
insti-notion thc alleged ultimate fact. Segregated,
to disregard, -(^hg evidential facts rarely, if ever, appear
to be relevant or material. Aggregated, their rel-
evancy or materiality may be irrefragable. Logi-
cally, therefore, no error is to be predicated by the
admission of competent evidence, the irrelevancy
or immateriality of which is not apparent at the
time. If the rule were otherwise, it would be diffi-
cult to conceive a case, where error could be avoided,
except at the risk of a denial of redress. It was
incumbent upon the plaintiff's counsel, therefore,
when the prejudicial character of the testimony
objected to was apparent, from the defendant's
subsequent failure to connect the plaintiff with the
facts in evidence therefrom, to ask the trial court
to strike such testimony out, and ^ to instruct the
1 Jewel. Mer. Agency v. Jewel Pub. 2 Italics, not in the original.
Co., 84 Hun, 12, 19; Jan'y, 1895.
92 AVOIDING IRRELEVANT EVIDENCE.
jury to disregard it. An exception to an adverse
ruling upon such a request, and not otherwise,
would have enabled us to consider the effect of the
admission of such testimony"; citing U. S. Vinegar
Co. V. Schlegel, swpra}
Remark. — ^Apparent intimation that, under the
circumstances referred to, the party, seeking to
avoid the effect of evidence admitted, should move,
hoth to strike out, and for an instruction, to the
jury, to disregard.
Thus far, the cases cited in this section have not
contained any explicit statement of doctrine, that
a party can safely sit silent when evidence is of-
fered by his adversary, and afterwards, by suitable
motion, avoid its effect, as a matter of right. It
remains to ascertain whether such a doctrine is
contained in any cases, and if it be, how those cases
are to be reconciled with the principles hereto-
fore enunciated.
In an action brought by a passenger, to recover
Irrelevant damages for having been ejected from
evidence defendant's train, it appeared, on the
avoidable . , , ■, . . L , -r~.
without trial, that plaintiff purchased, at Buffalo,
objection, a ticket good, by its terms, for a con-
tinuous passage from that city to Albany, and then
for a like passage, from the latter place to New
York; that, on his journey eastward, he left the
1 Pohalski v. Ertheiler, 18 Misc., 33, 35.
AVOIDING IRRELEVANT EVIDENCE. 93
train at Utica, where, on his leaving the sleeping-
car, its conductor, as plaintiff testified, tore off the
N. Y. Central coupon, and returned to him the
stub and the H. R. R. coupon, though that con-
ductor testified that he found the former coupon
in plaintiff's berth, after the train had left Utica;
that, next day, plaintiff took a train eastward, and,
being unable to produce the Central coupon, was
ejected at St. Johns ville, afterwards, however, pay-
ing the fare to Albany, under protest, and, return-
ing to the train, before leaving St. Johnsville, pro-
ceeded to Albany; that there plaintiff met the
conductor of the sleeping-car, who stated that he
had found the Central coupon, whereupon the con-
ductor of the Utica train refunded the fare from
Utica to Albany, after doing which, he addressed
plaintiff in slanderous language. These remarks of
the conductor were given in evidence by plaintiff,
without objection from defendant; but defendant's
counsel subsequently requested the court to charge
the jury that (if they believed plaintiff's testimony
in regard thereto) the company was not liable
therefor. This request was refused. On defen-
dant's appeal, the Court of Appeals sustained de-
fendant's exception to this refusal, saying:
"The fact that the statement referred to in the
request was made without objection by the de-
fendant did not render the refusal proper. It is
said with plausibility by Mullen, J.," (below)
"that the evidence 'was conceded by both parties
94 AVOIDING IRRELEVANT EVIDENCE.
to be competent, as evidenced by the one by offer-
ing, by the other by not objecting to it. To in-
struct a jury that such evidence is not to be taken
into consideration is to exclude it from the case.
This the court had no right to do.' The remark
is specious and unsound. It does not follow that
the omission to object to testimony is a concession
that it is competent. Counsel may deem certain
evidence offered entirely irrelevant and imma-
terial, and therefore harmless, and for that reason
raise no objection to its introduction, and thus
avoid an exception, assuming, as the learned judge,
after making the remark above quoted, immedi-
ately added, that 'being in, it was the duty of the
court and jury to give it whatever effect it ought
to have in the case.' On the application of that
principle, to the evidence referred to, the learned
judge was asked to instruct the jury that it ought
to have no effect whatever. This it was his duty
to do, if the testimony was irrelevant, and such as
could legally have no influence whatever on their
verdict." The Opinion then refutes the proposi-
tion that the evidence was competent as part of
the res gestce; the remarks made by the conductor,
at Albany, having been made several hours after
the ejection at St. Johns ville, and being said not to
be within the scope of the conductor's authority.^
Remark. — This decision holds clearly that, in a
jury cause, where evidence manifestly irrelevant,
1 Hamilton v. N. Y. C. K. R.Co., 51 N. Y., 100, 106; Sept., 1872.
HAMILTON CASE, AS A PRECEDENT. 95
i. e., such as "ought to have no effect whatever"
on the case, is offered, the opposing party can
safely sit silent, and afterwards move, as a matter
of right, for a direction to the jury to disregard it.
The Hamilton case has been cited, followed and,
apparently, extended beyond its original scope, in
later decisions.
In an action brought by a passenger to recover
for injuries suffered by reason of the sud-
Hamilton , . » -i i i
Case den startmg of an omnibus, operated by
followed, defendants, while she was alighting there-
from, plaintiff, being asked, on her direct examina-
tion, to state if she recollected whether the driver
made any remark to her at the time when she en-
tered the vehicle, responded, without any objec-
tion by defendants, not only that she did so recol-
lect, but that he swore at her, for not hurrying, and
started before she had fully entered, causing her
to fall to the floor. Afterwards, plaintiff's coun-
sel, evidently apprehending that the anticipated
verdict might be imperilled by this (irrelevant)
testimony, moved to strike it out, and for an in-
struction, to the jury, to disregard it; which motion
was granted, against defendants' objection and
exception. On defendants' appeal from a judg-
ment in plaintiff's favor, the General Term of the
N. Y. Superior Court affirmed the judgment, re-
fusing to sustain defendants' exception, and say-
ing:
96 HAMILTON CASE, AS A PRECEDENT.
"Defendants' counsel not only permitted this
irrelevant matter to be given in evidence, when it
would have been quite easy to stop the witness in
her narration of it, but to remain in the case. It
was, therefore, fully competent for the court, at a
later stage, on motion of plaintiff's counsel, and
against the objection and exception of defendants'
counsel, who claimed that the moral effect of the
testimony could not be removed in that way, to
strike out the said testimony, and to instruct the
jury to disregard it. Indeed, the instruction to
disregard it was the only relief to which the defen-
dants would have been entitled, had they seen fit
to make the motion"; citing Gawtry v. Doane,
supra, and Hamilton v. N. Y. C. R. R. Co., supra}
Remark. — This case is singular, in the circum-
stance that defendants tried to secure a reversal of
the action of the trial court in granting plaintiff's
motion to strike out, and direct a disregard of,
irrelevant evidence introduced by plaintiff. The
decision is cited here, as recognizing the authority
of the Hamilton case.
In an action brought to recover the amount of
Id. two policies of insurance issued by de-
fendant on the life of plaintiff's husband, evidence
was given by plaintiff, without objection, of decla-
rations made by defendant's general agent, tending
to show the existence of an agreement whereby de-
i Roberts v. Johnson, 37 N. Y. Superior, 157, 160; Feb., 1874.
HAMILTON CASE, AS A PRECEDENT. 97
fendant waived a lapse of the policies caused by
failure to pay premiums. After all the evidence
was taken, defendant moved for a non-suit on the
ground, among others, that it was not proved that
the conditions of the policy, as to payment of
premiums, had been waived; which motion was
denied. On defendant's appeal, the General Term
said:
"Those declarations were not competent evidence
of the existence of an agreement, made six weeks
before the time when they were made, against the
defendant, the principal of the agent making them.
And the omission to object to them when they
were offered did not deprive the defendant of the
right to insist upon their incompetency at the
close of the evidence, or any other time during the
progress of the trial. This was substantially held
in the case of Hamilton v. N. Y. C. R. R. Co., 51
N. Y., 100. But the objection actually taken did
not present this point for the decision of the court.
It simply presented the objection that the agent
was not authorized to waive or extend the time
of payment of the premium. Whether the proof,
given to show that an agreement had been made,
for the extension, was competent proof for that
purpose, was not mentioned nor suggested." ^
Remark. — This Opinion contains an obiter dictum,
recognizing the doctrine of the Hamilton case —
the possibility of avoiding the effect of evidence,
1 Dean v. ^tna Life Ins. Co., 2 Hun, 358, 368.
7
98 HAMILTON CASE, AS A PRECEDENT.
after omitting to object to its introduction — ex-
tending it from irrelevant evidence, to any which is
"in its essential nature incompetent." Irrelevant
evidence is, it is submitted, a class of evidence,
in its essential nature incompetent (inadmissible).
In a special proceeding instituted to procure the
Id. revocation of probate of a will, a witness
for contestant testified to declarations of decedent
tending to impeach the will. The Surrogate re-
fused to revoke probate, saying, in his Opinion:
"Very little of the testimony given by this wit-
ness was competent. The court would have been
bound, under the rules of evidence, to exclude the
bulk of it, if objection had been made, as it ought
to have been made, to its admission. For in view
of the fact that the mental capacity of the decedent,
though technically put in issue by the pleadings,
was not practically questioned at the trial, and that,
aside from her declarations, there was really no
proof of the fact of undue influence, those dec-
larations, tending to impeach the integrity of her
will, and to ascribe its contents to the improper
interference of her children, were not admissible
in evidence for any purpose. They were proved,
however, without objection, and will accordingly be
considered by the court, although they might, per-
haps, be safely disregarded in view of the decision
in Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 106." ^
1 Shaw V. Shaw, 1 Dem., 21, 24; June, 1882.
HAMILTON CASE, AS A PRECEDENT. 99
Remark. — This case contains a guarded dictum,
to the effect that the Hamilton case may be ex-
tended to a case of evidence essentially incompe-
tent, though not distinctly irrelevant.
In an action brought to recover damages for
injuries sustained by plaintiff, through the fall of
an elevator, by reason of the breaking of a chain,
in a building owned by defendants, on an allegation
of their negligence, in which the court directed a
verdict for defendants, plaintiff proved, without
objection, that B., the head-engineer, who had
charge, of all the machinery and elevators in the
building, addressing D., who was manager of the
building, but had nothing to do with the construc-
tion or management of the elevator, had said:
"Now, D., I knew that chain from the first day
was not strong enough for the car;" also that B.
had said: "that is the chain I had been repeatedly
at Mr. D., about being too light for its work." On
plaintiff's appeal, the General Term of the N. Y.
Superior Court reversed the judgment rendered in
favor of the defendants, on the ground that plain-
tiff was entitled to go to the jury on certain ques-
tions mentioned. But one of the prevailing Opin-
ions contains the following expressions:
"Although this testimony was received without
objection, yet I am of the opinion that it was not
evidence of the fact that B. had given the defen-
dants or their superintendent notice of the fact that
100 HAMILTON CASE, AS A PEECEDENT.
the chain was too Ught for its work. Neither was
it admissible as part of the res gestae. And the
omission to object to this testimony was not a con-
cession that it was competent. Hamilton v. N. Y.
C. R. R. Co., 51 N. Y., 100. . . . Notice to
D. was not notice to defendants." *
Remark. — Follows, in an obiter dictum, the Ham-
ilton case.
In an action brought to recover a balance al-
^d- leged to be due upon a competitive con-
tract, for goods to be sold and delivered, in which
the defense was that the contract was awarded to
plaintiff, not the lowest bidder, by collusion be-
tween him and officers of defendant, after defen-
dant had given evidence sufficient to justify a ver-
dict in its favor, plaintiff put in evidence, without
objection, a certificate of audit made by the clerk
of the board of apportionment, and an award signed
by two members of the board, though the law al-
lowed an award to be made only by the concurrent
vote of all the members of the board. The trial
court charged the jury to give no weight or impor-
tance to the award or audit; to which charge plain-
tiff excepted. On plaintiff's appeal from a judg-
ment rendered in favor of defendant, the General
Term of the Supreme Court sustained the charge,
holding that the award was illegal, and the certifi-
1 Delaney v. Hilton, 50 N. Y. Superior, 341, 344; June, 1883.
HAMILTON CASE, AS A PRECEDENT.
cate "was not evidence in the case," and, further,
saying:
"The court was right in the charge which was
given to the jury, directing them to give no weight
or importance to the award or audit, which were
read in evidence. For where improper evidence is
received during the progress of a trial, even with-
out objection as this was, it is still the duty of the
court, in the submission of the case to the jury, to
direct them to disregard it. Hamilton v. N. Y. C.
R. R. Co., 51 N. Y., 100." '
Remark. — This decision extends the benefit of
the Hamilton-case doctrine to evidence, which was
not objectionable on the specific ground of irrele-
vancy, and to a party who sought no relief from
its effect.
In an action brought by a passenger against a
carrier, a street railroad company, to re-
Hamllton ' , . 7
Case cover damages for personal mjuries result-
eiucidated. ing from defendant's negligence in start-
ing its car before plaintiff had reached a seat,
thereby, as alleged, permanently maiming her, the
Complaint set forth that the defendant "wrong-
fully and negligently started said car;" and the
evidence, on the part of plaintiff, which was ad-
mitted vnthout objection, was sufficient to warrant
the jury in finding that, while plaintiff was in the
act of gaining a place of safety in the car, the latter
1 Neilson v. Mayor, etc., of N. Y., 1 Silv., Supreme Ct., 471, 484.
102 HAMILTON CASE, AS A PRECEDENT.
was "suddenly started with a violent jerk." De-
fendant requested the court to charge the jury,
that "so far as the consideration of negligence
. . . . is concerned, the question of the violent
jerk is of no importance." This request was re-
fused; and, on defendant's appeal, the refusal was
sustained, the court saying:
"The theory of the defendant is, that this con-
stituted error because the Complaint did not allege,
in words, that the defendant started its car with a
violent jerk. . . . The pleadings fairly ap-
prised the defendant of the nature of the plaintiff's
claim for damages; .... and evidence that
the car was started with a jerk, while yet the plain-
tiff was in a position where she was exposed to the
danger of being thrown down was material to the
issue. The rule is supported by authority, that a
party who has sat by, during the reception of in-
competent evidence without properly objecting
thereto, and has thus taken his chance of advan-
tage to be derived therefrom, has not, when he finds
such evidence prejudicial, a legal right to require
the same to be stricken out (Matter of Morgan,
~ 104 N. Y., 74, 86) ; nor has he a right to be relieved
from its effect where such evidence is material
(2 Rums. Prac, 2d ed., 351, 352, citing Quin v.
Lloyd, 41 N. Y., 349). The defendant made no
effort to exclude any of the evidence as to the
violent jerk of the car; on cross-examination, the
evidence was rather emphasized in response to de-
HAMILTON CASE EXPOUNDED. 103
fendant's questions, and we are clearly of opinion
that the court did not err in refusing to charge de-
fendant's request. Of course, where the evidence
admitted is irrelevant, the party calling attention
to it is entitled to an instruction that it should be
disregarded by the jury (Hamilton v. N. Y. C.
R. R. Co., 51 N. Y., 100, 107). But the rule is dif-
ferent where the evidence is material to the issue,
though it might be incompetent if objected to, as
we have already pointed out." ^
Remark. — This very recent decision contains a
most valuable exposition of the Hamilton case, and
shows how far, and in what manner, the latter is
to be reconciled with the general duty to object to
objectionable evidence when it is offered. It is
supposed that the true rule, at least in the State of
New York, as indicated by this Opinion, is as fol-
lows: In general, the only available time to start
opposition to evidence is when it is offered ; there is
an exception as to evidence purely irrelevant (i. e.,
immaterial), and not otherwise without the pale.
As to such evidence, which, by definition, ought to
have no effect whatever on the case, it appears that,
on a jury trial, counsel can safely, if he choose so to
do, insist on maintaining a strict logical position,
i. e., allow it to be introduced without opposition,
and afterwards secure, as matter of right, an in-
struction, to the jury, to give it its logical effect —
no effect whatever; though why he should omit to
1 Plum V. Met. St. R. Co., 91 App. Div., 420, 422.
104 CONCLUSIONS AS TO AVOIDING EVIDENCE.
exercise the power to object to irrelevancy at the
outset, may not be considered plain. The tendency,
exhibited by some of the cases, to extend this doc-
trine to improper evidence, generally, is believed
not to be warranted by the Hamilton precedent,
and to be unintelligible, as tending to subvert the
entire body of practice rules, relative to taking ob-
jections to the introduction of evidence. The re-
sult of the foregoing examination, therefore, is as
follows :
Conclusions :
In non-jury causes:
The only possible method of seeking to avoid
the effect of evidence, once admitted, is a motion
to strike out. The granting or denial of such a
motion being in the discretion of the trial court,
the safer, as, evidently, also, the fairer, course is
to object to the admission.
In jury causes:
It is difficult rationally to distinguish the phght
of evidence, which the jury are instructed to dis-
regard, from that of evidence which is stricken out.
One feels an almost irresistible impulse to accord
assent to the assertion of Mullen, J. (quoted in
51 N. Y., 106), that ''to instruct a jury, that "
(such) "evidence is not to be taken into considera-
tion, is to exclude it from the case."
But the line of demarcation between a motion
to strike out, and one for an instruction to disre-
CONCLUSIONS AS TO AVOIDING EVIDENCE. 105
gard, is finally established; and all that can be said
is, that the distinction exhibits one of those pro-
found depths of the law, at which the lay-mind
gazes with surprise, or aghast, while the profes-
sional succumbs to the fiat of authority. No ar-
gument, in favor of making both motions, in any
one case, is apparent. It is submitted, as the true
rule, that a legal right to the granting of a motion
for instructions, to a jury, to' disregard evidence
which has been admitted without objection, exists
only in the case of irrelevant, which is the same
as immaterial, evidence.
SECTION IV.
MOTIONS TO DIRECT, AND TO SET ASIDE, VERDICTS.
In Linkhauf v. Lombard,^ it was said:
"The rule should be regarded as settled, under
all the authorities, as well by the decisions of the
Courts of this State as by those of England, that,
where there is no evidence upon an issue before the
jury, or the weight of the evidence is so decidedly
preponderating in favor of one side, that a verdict
contrary to it would be set aside, it is the duty of
the trial judge to nonsuit, or to direct a verdict,
as the case may require."
The decision in this case reversed a judgment
for plaintiff entered on a verdict, for error of the
trial court in refusing to dismiss the complaint, or,
subsequently, to direct a verdict for the defen-
dants.
In Hemmens v. Nelson,^ it was said:
"The most that can possibly be said is, that
there was a scintilla of evidence on the question of
malice which, under the doctrine of some older
cases, was sufficient to carry the question to the
1137 N. Y., 417, 426; 1893. 2 13S N. Y., 517, 529; 1893.
106
MOTION TO DIRECT, ETC., VERDICT. 107
jury. But this court is now firmly committed to
the more modern and reasonable rule, that, where
there is no evidence upon an issue before the jury
or the weight of evidence is so decidedly prepon-
derating in favor of one side, that a verdict con-
trary to it would be set aside, it is the duty of the
trial judge to nonsuit, or to direct a verdict, as the
case may require."
The decision in this case affirmed a judgment for
defendant entered upon a verdict directed by ,the
court.
In Cohn v. Mayer Brewing Co.,* it was said:
"Where the weight of evidence is so decidedly
preponderating in favor of one party that a verdict
contrary to that preponderance would be set aside
on motion, a trial judge should nonsuit, or direct a
verdict, as the case may require."
The decision in this case affirmed a judgment
entered upon a dismissal of the complaint by di-
rection of the trial court, the Opinion citing the
Linkhauf and Hemmens decisions (supra), and
others.
In McDonald v. Met. St. R'y Co.,^ it was said:
"It is undoubtedly true that, where there is a
conflict of evidence, the court may properly sub-
mit the case to the jury if it sees fit, even though
the testimony may decidedly preponderate on one
138 App. Div., 5, 6; 1899. 2 46 App. Div., 143, 146, 147;
1SC9.
108 MOTION TO DIRECT, ETC., VERDICT.
side or the other, so that a verdict would be set
aside as against the weight of the evidence, but it
is equally true that the court will not be required
to take such action although it is advisable to send
the case to the jury, except where there is a great
preponderance of testimony. But if the court
does not see fit to take that course, and has itself
disposed of the case, the question then to be de-
termined is, whether, upon the evidence, a verdict
in favor of the person against whom the judgment
has been rendered could be sustained. If hot, the
action of the court will be approved. This has been
the undoubted rule in this State for many years.
. . . . It is said, in the case of Linkhauf v.
Lombard, that the rule was to be regarded as
settled, as well by the decisions of the courts of
this State as by the courts of England, that, where
there is no evidence upon any issue before the jury,
or the weight of evidence is so preponderating in
favor of one side that a verdict contrary to it would
be set aside, it is the duty of the trial justice to
direct a nonsuit. What was said in that case was
accepted in a subsequent decision of the court, ^
where the Opinion was delivered by the only jus-
tice who dissented in the case of Linkhauf v.
Lombard. In the absence of some decision of that
Court, we do not think we should be at liberty to
depart from the rule there laid down."
The decision in this case affirmed a judgment
1 Hemmens v. Nelson.
MOTION TO DIEECT, ETC., VERDICT. 109
for defendant entered upon a verdict rendered by
direction of the trial court.
In Fealey v. Bull/ the appeal was from a judg-
ment affirming one in favor of plaintiff, entered on
a verdict rendered on the third trial of the action.
The Court of Appeals affirmed the Judgment ap-
pealed from, the point of the decision, as stated in
the head-note, being that, where the Appellate Di-
vision has reversed a judgment based upon a Ver-
dict held to be against the weight of evidence, and
grants a new trial, and, on a subsequent trial, the
evidence is substantially the same, the refusal of
the trial court, to non-suit, presents no error re-
viewable by the highest Court, where the evidence
is sufficient to support a verdict either way. In
its Opinion, the Court referred to the decisions of
the Appellate Division in the Cohn and McDonald
cases (supra), and explained the Linkhauf and
Hemmens cases (supra), as follows:
"In Linkhauf v. Lombard, it is said that 'the
rule should be regarded as settled, under all the
authorities, as well by the decisions of the courts of
this State as by those of England, that, where there
is no evidence upon an issue before the jury, or the
weight of the evidence is so decidedly preponder-
ating in favor of one side, that a verdict contrary
to it would be set aside, it is the duty of the trial
judge to nonsuit, or to direct a verdict, as the case
1 163 N. Y., 397; 1900.
110 MOTION TO DIRECT, ETC., VERDICT.
may require.' A statement substantially similar
is to be found in Hemmens v. Nelson. Taken by
themselves, these declarations apparently afford
some justification for the rule asserted in the cases
cited from the Appellate Division. But to excerpt
a single sentence from a judicial opinion and con-
strue and interpret it apart from the context of the
Opinion in which it is found, and without regard
to the subject-matter under discussion, is not only
unreasonable, but at times leads to erroneous con-
clusions." And the Opinion then proceeds to con-
fine the effect of the Linkhauf and Hemmens de-
cisions to the facts presented to the court, in those
cases, respectively, and concludes that, "where the
right to a verdict depends on the credibility to be
accorded witnesses, and the testimony is not in-
credible nor insufficient as a matter of law, the
question of fact is for the jury to determine."
The McDonald case (supra) reached the highest
Court in 1901, and its Opinion therein is next re-
ferred to.
In McDonald v. Met. St. R'y Co.,^ the appeal
from the judgment of the Appellate Division (su-
pra) was allowed "upon the ground of an existing
conflict in the decisions of different departments
of the Appellate Division, as to when a verdict
may be directed where there is an issue of fact,
and because in this case an erroneous principle
1 167 N. Y., 66 (1901).
MOTION TO DIRECT, ETC., VERDICT. Ill
was asserted, which, if allowed to pass uncorrected,
would be likely to introduce confusion into the
body of the law (p. 68)." The Court reversed the
judgment below, holding that the trial court erred
in directing a verdict, and finally settled the dis-
tinction between the power of a trial court to
direct, and to set aside, a verdict, saying :
"The rule that a verdict may be directed when-
ever the proof is such that a decision to the contrary
might be set aside as against the weight of evidence
would be both uncertain and delusive. There is
no standard by which to determine when a verdict
may be thus set aside. It depends upon the dis-
cretion of the court. The result of setting aside
a verdict, and the result of directing one, are widely
different, and should not be controlled by the same
conditions or circumstances. In one case there is
a re-trial. In the other the judgment is final. One
rests in discretion; the other upon legal right. One
involves a mere matter of remedy or procedure.
The other determines substantive and substantial
rights. Such a rule would have no just principle
upon which to rest. ... So long as a ques-
tion of fact exists, it is for the jury and not for the
court. If the evidence is insufficient, or if that
which has been introduced is conclusively an-
swered, so that, as a matter of law, no question of
credibility or issue of fact remains, then the ques-
tion being one of law, it is the duty of the Court to
determine it."
112 MOTION TO DIRECT, ETC., VERDICT.
The Opinion cites the decision of the Fealey case
(supra), as disclosing that the reversal in the Link-
hauf case was upon the ground that the proof
amounted at most to a mere surmise, and that, in
the Hemmens case, the principle, that, if there is
any evidence upon a question of fact, it should be
submitted to the jury, was asserted.
Therefore, since 1901, it has been, and presum-
ably will continue to be, true that a trial judge
should not nonsuit, or direct a verdict, on the
ground that the weight of evidence is so decidedly
preponderating in favor of one party that a verdict
contrary to that preponderance would be set aside
on motion; and that his power and duty, to give
such a direction are confined to cases where "no
question of fact exists."
But, as stated in the Fealey Opinion, the hy-
pothesis "that there is no evidence to go to a jury"
does "not mean literally none, but that there is
none that ought reasonably to satisfy a jury, that
the fact sought to be proved is established." The
doctrine of a "scintilla of evidence" is adverted to.
A mere scintilla is not, now, sufficient to carry a case
to the jury, and the judge, not the jury, is to say that
the evidence has only the dimensions and vitality
of a spark. That doctrine is explained as covering
two classes of cases: one, where "the proof has been
a mere matter of inference"; and the other, cases
of direct evidence, such as where the testimony of
a witness is "in such contradiction of matters of
MOTION TO DIRECT, ETC., VERDICT. 113
common knowledge, or the laws of nature, as to
be incredible as a matter of law."^
Meanwhile, the former rule continues, it appears,
to prevail in the Federal Courts. In a recent
case, in the Eighth Circuit, it was held, that a
passenger in a street car, who, on account of sud-
den illness, put her head through a window above
a screen covering the lower half of the aperture,
and was struck by a trolley pole, she being
obliged to stand up, or kneel, on the seat, in order
to assume the position mentioned, was guilty of
contributory negligence, as matter of law.
The Court said: "While the questions of neg-
ligence and contributory negligence are ordinarily
questions of fact, to be passed upon by a jury,
yet if it clearly appears from the undisputed
facts, judged in the light of that common knowl-
edge and experience of which courts are bound
to take notice, that a party has not exercised
such care as men of common prudence usually
exercise in positions of like exposure and danger,
or where the evidence is of such conclusive char-
acter that the court would be compelled to set aside
a verdict returned in opposition to it,^ it may with-
draw the case from the consideration of a jury.
In North Penn. R. R. v. Commercial Bank,' the
Supreme Court said: 'It would be an idle pro-
ceeding to submit the evidence to the jury when
1163 N. Y., p. 402. 3 123 U. S., 727; 8 Sup. Ct. R.,
2 The italics are not in the original. 226; 31 L. Ed., 287.
8
114 CONCLUSION, AS TO DIRECTING, ETC., VERDICT.
they could justly find only in one way.' While
the plaintiff's sudden Ulness placed her in a very
uncomfortable and distressing position, yet that
fact would not authorize her to disregard unmis-
takable warnings of danger. She must have known
that the heavy screens which barred the windows
were placed there for no other purpose than to
prevent passengers from extending their arms
or heads out of the windows, as the meshes in the
screen were too large to serve any other purpose.
To disregard this plain warning was, we think,
such contributory neghgence upon her part as
will necessarily preclude a recovery in this case."^
Conclusion :
In conclusion : the practical rule is at length defi-
nitely settled, in New York, that it is not within
the province of the court to prevent a verdict
because of the court's apprehension of the pre-
ponderance of evidence, though it may set aside
a verdict, and grant a new jury trial, upon con-
siderations in that regard. But a reconciliation
of the doctrine, that it is for the court to deter-
mine that, though there is evidence, to go to the
jury, there is none that ought reasonably to sat-
1 Christensen v. Met. St. R'y, 137 U. S., 615; Nor. Pac. R'y v. Free-
Fed. Rep., 708; U. S. C. C. A., man, 174 U. S., 379; N. W.'R. R.
April, 1905: citing R. R. Co. ti. ii. Davis, 53 Fed. Rep., 61 ; Mo. Pac.
Husen, 95 U. S., 465; Schofield v. R'y v. Moseley, 57 Fed. Rep., 921.
Chicago, M. & St. P. R. R., 114
CONCLUSION, AS TO DIRECTING, ETC., VERDICT. 115
isfy that body that the fact sought to be proved
is estabUshed, instead of giving them a chance of
a vote, with the unquahfied insistence on a preser-
vation of the sacred right of trial by jury inviolate
forever — is a problem that will remain inscruta-
ble as long as the dictum de omni and the present
constitution of the human mind shall survive.
THE END.
INDEX,
PAGE
ABBOTT,
definition of evidentiary terms by, 24
ALLITERATIVE
objection to evidence i, 76
ANDERSON,
definition of evidentiary terms by, 24
ANGLICAN
law of evidence, nature of, 4
ARISTOTLE,
dictum of; its relation to judicial evidence 6
BENTHAM,
definition of evidence by, 2
BEST,
definition of evidence by, 2
BLACKSTONE,
definition of evidence by, 3
BOUVIER,
definition of evidentiary terms by, 25
BRADNER,
definition of relevancy, by, , 30
117
118 INDEX.
PAQI!
BURRILL,
definition of evidentiary terms by, 25
CASES,
adjudicating on objections to evidence 35-73
CHAMBERLAYNE,
definition of relevancy by, 29
CLASSES
of objections to evidence; two in number 74
COMPETENT
evidence, meaning of, 34
COSTS,
evidence, as bearing on award of, 61
DECISIONS
on particular objections to evidence 35-73
DEFINITIONS:
competency of evidence 24, 30
competent (evidence) 23, 24, 25, 32
evidence 2, 3
immaterial (evidence) 25, 34, 75
incompetency of evidence 32, 33
incompetent (evidence) 24, 34, 74
irrelevant (evidence) 24, 25, 75
material (evidence) 23, 24, 25, 33, 75
materiality of evidence 33
objection to evidence 12
general 13
specific 13
relevancy of evidence 28, 29, 30, 31, 32
relevant (evidence) 23, 24, 25
INDEX. 119
DICTUM
of Aristotle, universality of,.
ENTHYMEME,
employment of, in reasoning 10
ETYMOLOGY
of certain evidentiary attributives 23
EVIDENCE,
a word of relation 2
defined 2, 3
when deemed wanting 112
EVIDENTIARY
fact is a minor premiss of syllogism 9
distinguished from "fact in issue" 12
EXCEPTION,
what objections favorable to valid, 77
FACT
in issue, and evidentiary fact; relation 12
FEDERAL COURT:
definition of evidence by, 3
rule in, as to directing verdict 113
GENERAL
objection defined 13
usually unadvisable 13
GREENLEAF,
definition of competency by, 30
evidence by, 3
120 INDEX.
PAGE
GROUND
of objection; omission to state, 63
HAMILTON
case, analysis of rule established by, 96, 101
HEARSAY
evidence defined 6
as an explicit term of objection to evidence 76
IMMATERIAL
evidence, distinguislied from incompetent, 34
INADMISSIBILITY
and incompetency of evidence, compared 17, 19
INCOMPETENT
evidence, meaning of, 74
INSTRUCTION
to jury, to disregard evidence 85, 88
IRRELEVANT
evidence, synonymous witii immaterial, 105
ISSUE,
definition of, 11
etymology of, 11
JONES,
definition of relevancy by, 29
JUDICIAL
definitions of evidentiary terms 31
LOGIC,
rules of; relation to evidentiary rules 7
INDEX. 121
PAGE
MATERIAL,
as applied to an objection; is it always specific. . . 7
evidence, meaning of, 23, 30
evidence, substantially synonymous with relevant, 75
MOTION
for direction of verdict 106-115
for instructions to jury, to disregard evidence, rule
governing, 104
to set aside verdict 106-115
to strike out evidence, in general discretionary . . 83
NONSUIT,
when proper 107
OBJECTION
to evidence defined 12
general, defined 13
effect of overruling, 16
sustaining, 16
generally hazardous 13
specific, defined 13
effect of overruling, 21
sustaining, 18
purposes of requiring, .... 13, 14
two grand classes of, 74
PLEA
one of the common-law pleadings 11
PLEADINGS
at common-law, enumeration of, ... 11
purpose of, 11
PROBABILITY
of inference, effect of, on admissibility of evidence 9
122 INDEX.
PAGE
PROTEST,
marine, status of, as evidence 43, 44
REBUTTER,
one of the common-law pleadings 11
REJOINDER,
one of the common-law pleadings 11
RELEVANCY,
legal, and logical, compared 31
REPLICATION,
one of the common-law pleadings 11
REYNOLDS,
definition of relevancy by, 29
SCINTILLA
of evidence, doctrine of, 106, 112
SORITES,
employment of, in reasoning 10
SPECIFIC
objection defined 13
SPECIFICATION
of objection, effect of wrong, 65
SPECULATION
on forthcoming evidence, condemned 90
STEPHEN,
criticism by, of negative character of evidentiary
rules 1, 5
definition of relevancy by, 28
INDEX. 123
PAGE
STRIKING OUT
evidence, distinguished from instruction to dis-
regard, 83
SURPRISE,
prevention of, a purpose of requiring specific ob-
jection 14
SURREBUTTER,
one of the common-law pleadings 11
SURREJOINDER,
one of the common-law pleadings 11
SYLLOGISM,
logical, employment of, in forensic proof 7
TIMELY
objection to evidence; whether indispensable.. .78, 92
UNITING
motions to strike out, and for direction to disre-
gard, evidence 91
VERDICT,
motion to direct, 106
set aside, 106
WAIVER
of objection to evidence 82
WHARTON,
definition of relevancy by, 28
WIGMORE,
definition of evidence by, 3
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