Tichnor Brothers, Incorporated, Respondent, v. Samuel M. Barley, the Name "Samuel" Being Fictitious, etc., Appellant

Tichnor Brothers, Incorporated, Respondent, v. Samuel M. Barley, the Name “Samuel” Being Fictitious, etc., Appellant. Second Department, March 15, 1912. Appeal—reversal of judgment of Justice’s Court — evidence — “ impression ” of witness. A judgment of a Justice’s Court should not he reversed on the sole ground that the justice of the peace refused to strike out testimony of the defendant as to his “ impression ” relating to the delivery of certain goods, where such “impression” was derived from the defendant’s recollection of the facts. If, however, an “ impression ” is merely an inference, or is not derived from a recollection of the facts and is so slight as to render it probable, that it may have been derived from others, or may have been some unwarrantable deduction of the witness’ own mind, it is not admissible in evidence. Appeal by the defendant, Samuel M. Barley, from a judgment of the County Court of Nassau county in favor of the plaintiff, entered in the office of the clerk of said county on the 28th day of June, 1911, pursuant to an order of said County Court entered in said clerk’s office on the same day, reversing a judgment of a Justice’s Court in favor of the defendant, and also (as stated in said notice of appeal) from the said order directing the entry of the judgment appealed from. Albert H. Seabury, for the appellant. Lincoln B. Haskin, for the respondent. [MAJORITY — Jenks, P. J.:] Jenks, P. J.: The County Court reversed the judgment of the Justice’s Court on questions of law. The learned judge wrote a commendable opinion (72 Misc. Rep. 638) upon the law of the case, but we think he erred when he excised all testimony as to a return of the goods. The opinion reads: “ The justice erred in refusing to strike out ” certain testimony of the plaintiff, “ and as this testimony is the only evidence in the case given to establish the defense of rescission, the error is material, ” and also that “ the only ground upon which the judgment could be sustained would be that there was an actual return of the goods which the justice was not authorized to find upon the said evidence.” The testimony as to actual return is as follows: The defendant, called by the plaintiff, testified upon cross-examination: “I received that letter and made copy at about the time goods were delivered. I returned goods to Express Co. with instructions to return [to] the manufacturers. Manufacturers address on goods when left at Express office. I don’t remember if took receipt. I have none' with me, Re-Direct Examination: I delivered them to Express Company wagon myself if my memory serves me correctly. I have a clerk. That is my impression. Q. Then your testimony that you delivered the goods to Express Company is based wholly on your impression ? A. Tes.” “Plaintiff moves that all his testimony regarding the delivery of the goods to the express company be stricken out because is immaterial, and because is based on an impression. [Motion denied. Exception.] ” The learned county judge seems of opinion that this “impression” was not evidence. An “impression” may be derived from the recollection of the witness as to the facts. Then “ impression ”, is an expression in qualification of memory, and is admissible as evidence. Such qualification can but affect the probative force of the testimony, as can such limitations as “I think,” or “I am not sure,” or “To the best of my recollection,” and the like. (See Moore Facts, § 1272, and cases cited.) If, on the other hand, an “impression” indicates that it is but an inference or that it “is not derived from recollection of the fact, and is so slight as to render it probable that it may have been derived from others, or may have been some unwarrantable deduction of the witness’s own mind, it will be rejected.” (Greenl. Ev. [15th ed.] § 440; Wigm. Ev. § 726 and cases cited; Kingsbury v. Moses, 45 N. H. 222; Whitman v. Morey, 63 id. 448; Humphries v. Parker, 52 Maine, 502.) We think that the justice did not err in the ruling, and as this evidence was not disputed it was sufficient to support his judgment. The judgment of the County Court of Nassau county is reversed, with costs, and that of the Justice’s Court is affirmed. Hirsohberg, Burr, Woodward and Rich, JJ., concurred. Judgment of the County Court of Nassau county reversed, with costs, and that of Justice’s Court affirmed.