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of Civil Procedure," but the only ground which seems to have been argued below was an exception to the admission in evidence of several photographs of the locus of the accident, taken from different points of view; and that is the principal question made on this ap

The proofs preliminary to the introduction of the photographs showed that they were taken by a photographer about six weeks after the accident, and that the road and its surroundings had not been changed in the mean time in any substantial particular; and the plaintiff, who accompanied the photographer, and who had himself, after that time, some experience in taking photographs, testified that each of the pictures was a correct representation of the scene, from the point of view of each, at the time it was taken. This testimony was not contradicted. Some time after the photographs were proved, as above stated, and marked for identifi. cation, they were offered in evidence by counsel for the plaintiff, whereupon, as we read from the record, counsel for the defendants objected to the evidence "as incompetent; that there were changes between the time the accident occurred and the time the photographs were taken, and they are not proved by the photographer who took them to be accurate.” The objection was overruled, and the defendants excepted. We think the exception was not well taken. It will be seen that the only real ground of the objection stated was that the photographer was not called to testify to the accuracy of the pictures. It is true that the photographer is often called, and it is very proper that he should be, to answer particular questions, if desired, in respect to his work; but it is not apparent that he is any more competent to speak of the accuracy of the picture—that is, we suppose, the correctness of the representation-than any other eyewitness of equally correct vision and powers of observation, and equally interested to observe the features of the scene depicted. There is no case, we believe, in which the verification of the photographer has been held essential to the competency of the picture as evidence, and there are several cases in which the pictures have been admitted without such verification. Roosevelt Hospital v. New York El. R. Co., (Sup.) 21 N. Y. Supp. 205; Archer v. Railroad Co., 106 N. Y. 589, 13 N. E. 318; Alberti v. Railroad Co., 118 N. Y. 77, 23 N. E. 35. In Blair v. Pelham, 118 Mass. 420, it was held, in an opinion by Gray, C. J., that the photograph must be verified by proof that it was a true representation of the subject; not that such proof must be made by the photographer, but, on the contrary, that the question whether it was sufficiently verified was a preliminary question of fact for the court, and its decision was not subject to exception. It seems to be clear that the objection in this case on the ground stated was not tenable, and was properly overruled. We are unable to see that there was any just ground for the objection to the admission of the photographs in this case. It is undoubtedly true that photography has come to be recognized as a most efficient aid in investigations, the subjects of which cannot themselves be brought into court; and nowhere, as we think, have the principles upon which such aid is received been more correctly

set forth than by the supreme court of Pennsylvania in 1874, in the case of Udderzook v. Com., 76 Pa. St. 340, where that court said:

"It is evident that the competency of the evidence in such a case depends upon the reliability of the photograph as a work of art, and this, as in the case before us, in which no proof was made by experts of this reliability, must depend upon the judicial cognizance we may take of photographs as an established means of producing a correct likeness. The Daguerrean process was first given to the world in 1839. It was soon followed by photography, of which we have had nearly a generation's experience. It has become a customary and a common mode of taking and preserving views as well as the likenesses of persons, and has obtained universal assent as to the correctness of its delineations. We know that its principles are derived from science; that the images on the plate, made by the rays of light, through the camera, are dependent on the same general laws which produce the images of outward forms on the retina through the lenses of the eye. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses."

Much to the same purpose was the remark of our own court of appeals in the case of Cowley v. People, 83 N. Y. 464:

"We do not fail to notice, and we may notice judicially, that all civilized communities rely upon photographic pictures for taking and preserving resemblances of persons and animals, of scenery and all natural objects, of buildings and other artificial objects."

We may add that we have examined the original photographs in this case, which are in the record before us, and find-as, no doubt, the judge at the circuit found—that they bear evidence on their face of the correctness of their representation of the scenes depicted in clearness of delineation, sharpness of outline, correct perspective, and in the just proportion between the various objects depicted. We have no doubt of the competency or of the usefulness of the evidence in question.

The only other exception mentioned in the argument of counsel for the defendants on this appeal was to the refusal of the court to strike out an answer of one of the physicians as not responsive to the question put to him. The question was: “Will you state the character of the injury which Mr. Nies received more particularly ?" The answer was: “A. He had, as I termed it, concussion of the spine; and that, if you will allow me to, I will explain to the jury as well as I can,—what follows from that. It is considered by competent medical authority that an injury of that character that don't immediately make marked improvement, and lead on to a complete cure in a few months, never gets well. In other words, after a patient has passed twelve months without marked bettering of his condition, it shows or argues that there is structural change in the chord there, and it will be permanent.” Defendants' counsel asked to have the answer stricken out as not responsive. The motion was denied, and the defendants excepted. The fact that the answer of a witness is not strictly responsive to the question on direct examination does not, necessarily, entitle the party against whom the evidence is given to have it stricken out. On the contrary, if the evidence embraced in the answer is in itself competent, and such as might be properly deduced by another question, it is in the dis

cretion of the court to let the answer stand; the only ground for striking out being that improper evidence has been put into the case in answer to a proper question, and so without affording an opportunity to the other side to object to its introduction, In this case there was no objection to the evidence on the ground of incompetency, and, if there had been, we think it would have been untenable. It was, no doubt, competent for the plaintiff to give evi. dence of the probable duration of the injury which he had received, and whether it was likely to be permanent. Indeed, these are characteristics of an injury or disease, and were therefore, in a manner, called for by the question by which the witness was asked to state the character of the injury. There seems to be nothing improper about the answer except the form of the expression, “it is considered by competent medical authority," and this was only another form of stating what the science of medicine teaches on the point in question. There seems to be no error in the refusal to strike out, and, as no further complaint of error is made on this appeal, the judg. ment and order appealed from should be affirmed. So ordered. All concur.

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(Supreme Court, General Term, Fifth Department. January 18, 1894.)


Where plaintiff claims a chattel as purchaser at a mortgage sale, and it does not appear when the mortgage was given, or what property it covered, or that it had ever been filed, or what plaintiff paid for the chat. tel, a verdict for defendant should not be disturbed on appeal.

Appeal from special term, Steuben county.

Action by Asa Razy against Christian Whittick for conversion. From a judgment in favor of plaintiff, defendant appeals. Reversed. Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ. George D. Reed, for appellant. Murray E. Page, for respondent.

LEWIS, J. This action was originally tried in justice's court in Steuben county, before a jury. The defendant was successful in that court, and an appeal was taken from the justice's judgment to the county court of Steuben county. The judge of that court being disqualified to hear the appeal so certified, it was transferred into the supreme court, and was heard at a special term thereof, and the justice's judgment was reversed, and from that judgment an appeal was taken to this court. The action was brought against the defendant for wrongfully converting a rowboat, of the value of $10. The plaintiff claimed title to it as a purchaser at a sale upon the foreclosure of a chattel mortgage given by one Mr. Lovell. The de fendant claimed title to the boat as a purchaser at a sheriff's sale upon an execution issued upon a judgment in favor of the Rochester Distilling Company against Lovell.

The case was tried in the justice's court in a careless and unsatisfactory manner. It was not made to appear upon the trial when the mortgage under which plaintiff claimed was given, or what property it covered, except as it may be claimed to have inferentially appeared from the testimony of the plaintiff that he bought the boat at a chattel-mortgage sale. It was not shown that the mortgage had ever been filed. Lovell, the mortgagor, testified that he took the mortgage to get it filed, but when and where it was filed was not made to appear, or that he in fact ever filed it. Lovell was a son-in-law of the plaintiff. The record shows that the mortgage was received in evidence, but it is not printed in the case. The plaintiff testified:

"I bought the boat at mortgage sale at Loon lake; Page's mortgage sale; chattel-mortgage sale. Mr. Page, I suppose, made the sale. He sold the property. Do not know as the boat was included in the mortgage. Cannot tell the day mortgage sale took place. Mr. Green, the deputy sheriff, was present at the sale, and objected to it. Did not know there was going to be a sale until the day of sale." It was not made to appear what plaintiff paid for the boat.

The evidence was conflicting as to whether the plaintiff ever had possession of the boat. He testified that he did at one time, but did not tell when. The boat was manufactured for Lovell in the spring of 1890. There was evidence tending to show that he had possession of it from the time it was built until its sale to the defendant, under the execution aforesaid, which sale took place on the 16th day of August, 1890. The defendant purchased the boat at an auction sale under an execution, and paid the sheriff for it. The plaintiff failed to establish a satisfactory title to the boat. The most that can be claimed is that questions of fact were presented which were proper for the determination of the jury. They found against plaintiff, and their verdict should not have been disturbed. The judg ment appealed from should be reversed, and that of the justice affirmed, with cost of the appeal in this court and that of the special term. All concur.

(75 Hun, 292.)


(Supreme Court, General Term, Fifth Department. January 18, 1894.) 1. JUSTICE OF THE PEACE-JURISDICTIONAL AMOUNT.

Under Code Civil Proc. $ 2863, providing that a justice cannot take cognizance of civil actions where, in a matter of mutual account, the sum total of the accounts of both parties, “proved to the satisfaction of the Justice,” exceeds $400, the justice is not ousted of jurisdiction because

the amount claimed in the pleadings exceeds that amount. 2. SAME-REVIEW ON APPEAL.

On appeal from a judgment of discontinuance on the ground that the total accounts of both parties, “proved to the satisfaction of the justice," exceeded $400, (Code Civil Proc. $2950,) where the notice of appea) demands a new trial, as provided by Code Civil Proc. $ 3068, the appellate court may review the decision of the justice on the question of juris. diction, and is not restricted to review of such question where the appeal is only on questions of law. Appeal from Cattaraugus county court.

Action by Daniel E. Bartlett against James W. Mugett. From an order of the county court dismissing plaintiff's appeal from a judgment of a justice of the peace, plaintiff appeals. Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

E. D. Northrup, for appellant.
G. M. Rider, for respondent.

LEWIS, J. The plaintiff brought his action in the justice's court in Cattaraugus county, and claimed in his complaint, for his first cause of action, that the defendant was indebted to him for work and services in pressing into bales 280 tons of bay at the agreed price of $1.75 a ton, and that there became due to him therefor $490; that the defendant had not paid any part thereof, except the sum of $300; and that there remained due, on account thereof, the sum of $190. For his second cause of action he alleged that the defendant was indebted to him in the sum of $39.02 for goods, wares, and merchandise sold and delivered to the defendant, and that the de fendant had paid thereon the sum of $40, thereby slightly overpay. ing the same. He demanded judgment against the defendant for $188.04, with interest thereon from the 1st day of December, 1892. The defendant interposed an answer, admitting that the plaintiff pressed a quantity of hay for him at the price stated in the complaint, but that the amount was less than 280 tons, and that he had paid the plaintiff, to apply thereon, divers sums of money, amount. ing, in all, to $340; and for a further answer alleged that the plaintiff was justly indebted to him for goods furnished, and upon mutual dealings between the parties, in the sum of $110, which was pleaded as a counterclaim, and demanded judgment against the plaintiff for $110. The issue being thus joined, the defendant thereupon moved for a discontinuance of the action on the ground that it appeared from the pleadings that the sum total of the accounts and demands of both parties in dispute exceeded the sum of $400, and the justice, against the objections of the plaintiff, granted the motion, and dismissed the case, and entered judgment against the plaintiff for costs. The plaintiff served a notice of appeal from the justice's judgment to the county court of Cattaraugus county, and in said notice demanded a new trial in that court. The defendant thereupon moved the county court for an order dismissing the appeal on the ground "that the justice had no jurisdiction, and could not take cognizance of the action, for the reason that the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeded $400." The motion was granted, and an order entered, dismissing the appeal, and from such order the plaintiff appealed to this court.

The justice unquestionably erred in dismissing the action, as it will be seen by an examination of the pleadings that the sum total of the accounts of both parties in dispute did not exceed $400. They, in fact, amounted to just $298.04. The justice had no authority to dismiss the action until it was made to appear to him by proof that the amounts in dispute exceeded his jurisdiction. It

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