Frank A. Selah, Appellant, v. The New York Times Company, Respondent

Frank A. Selah, Appellant, v. The New York Times Company, Respondent. First Department, March 22, 1907. Case — when appellant entitled to have evidence excluded on objection of respondent appear in case. When in an action to recover for services rendered, the defendant introduces a receipt signed by the plaintiff and the plaintiff’s-explanation-as to why he signed the paper is excluded on the objection of the defendant, the plaintiff' is entitled to have the -excluded question contained in the printed case in order that the defendant .cannot reverse the judgment on the ground that there was a failure of evidence when the same was excluded on his own objection. This is so, although the plaintiff’s exceptions to the exclusion of the evidence were not well taken. Appeal by the plaintiff, Frank A. Selali, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of January, 1907, denying the plaintiff’s motion for an order resettling the case upon appeal herein. V. M. Seabury, for the appellant. Alfred A. Cook, for the respondent. [MAJORITY — Engraham, J,:] Engraham, J,: Upon the trial of this action, which was to recover for services rendered by the plaintiff to the defendant, a receipt signed by the plaintiff had been introduced in evidence. When plaintiff was on the stand he was handed this receipt and asked what explanation he had to make as to his signature to the paper. That was objected to by the defendant and the objection sustained. Other questions' were asked in relation to this receipt, and to show that at the time the receipt was given it was not intended to release the defendant from all claims by the plaintiff. This evidence was excluded upon the objection of the defendant. The plaintiff recovered a verdict from which the defendant has appealed. In making up the case on appeal the defendant excluded the questions relating to the release excluded at the trial, and the plaintiff respondent sought to have the questions inserted with a statement that they were excluded on objection by the defendant.The learned trial judge refused to allow these amendments. It would appear that upon the appeal the question would be raised as to the effect of this receipt, and it may become material for the plaintiff to show that he had offered to explain it but that his testimony in relation to it was excluded on objection of the defendant, so that he could have the benefit of tlie rule that an appellant cannot have a' judgment reversed on the ground that there was a failure of evidence where on his own objection the evidence upon the subject had been excluded. I think the plaintiff was entitled to have this fact appear in the case. There is no dispute about the facts. Tbe questions were asked by the plaintiff; were objected to by the defendant, and on such objection the-evidence was excluded. The plaintiff’s exceptions to the rulings would be entirely immaterial and were quite properly excluded from the base, but. the fact that this testimony was offered and excluded' in consequence of the objections of the defendant should appear. • ' ' The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the case ■ sent ,back to the learned trial justice to resettle the case in accordance with the views here expressed. Patterson, P. J., McLaughlin, Clarke and Houghton, JL, . concurred. Order reversed,, with ten dollars costs and disbursements, and case remitted as' stated in opinion. Order filed.