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Taylor v. Heft

Supreme Court of New York, Appellate Division

May 17, 1912

CAROLINE J. TAYLOR, Appellant,
v.
NATHAN H. HEFT, Respondent.

APPEAL by the plaintiff, Caroline J. Taylor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk's office on the 10th day of May,

Page 510

1911, denying the plaintiff's motion for a new trial made upon the minutes.

COUNSEL

Philip Carpenter of counsel [Frank Parker Ufford with him on the brief], for the appellant.

Noah C. Rogers of counsel [Alfred H. Holbrook with him on the brief],Merrill & Rogers, attorneys, for the respondent.

CLARKE, J.:

The complaint alleged that between April 2, 1899, and August 8, 1903, the plaintiff, at the defendant's request, furnished board and care of the defendant's son Stanley, which was reasonably worth, and for which the defendant agreed to pay, the sum of $10,400.

The parties resided at Bridgeport, Conn. The plaintiff kept boarders.

Stanley Heft was a young man twenty-six years of age. The plaintiff claimed that he was a victim of the morphine habit and she testified to the contract upon which she sued, as follows: 'He [referring to the defendant] talked at length about their not being able to do anything with him, as I well knew, and that he would not go to an institute and that he did not know what they should do; he couldn't devote any time to him, and his mother couldn't manage him at all, and if I would keep him and try and see what I could do why he would pay me whatever I said was right. I certainly did not agree to take him until he had said that. After he said that, I said I would try and see what I could do, I couldn't promise anything, I would do the best I could. Nothing was said about the price; he said he would pay me whatever I thought was right. Yes, he asked me what I would charge, in the first place, and I said I didn't know, that was quite an undertaking, I couldn't say what I would charge, but I said, 'you are able to pay whatever I charge, I guess,' or something like that, and he said, 'Yes, I will pay you whatever you think is right."' She testified that the amount sued for was calculated upon the basis of fifteen dollars a week for board and lodging and thirty-five dollars a week for personal attention; that she had not been paid anything.

Page 511

This agreement was absolutely denied by the defendant. Questions of fact were presented which required submission to the jury and we would not reverse this judgment were it not for the fact that evidence was erroneously admitted of such character that it might have had a controlling effect upon the jury in a case where the contract sued upon was verbal, asserted by the plaintiff and flatly denied by the defendant.

The defendant was permitted, under objection and over exception, to testify that his relations with the plaintiff were improper from 1899 and so continued down to 1905, and he was permitted to go extensively into detail and to testify specifically to a number of acts committed on various trips which he claimed to have taken with the plaintiff during those years.

This testimony was irrelevant and inadmissible. The plaintiff had not been interrogated as to any of these matters upon her cross-examination but the defendant was examined upon them in chief. The question at issue was whether the defendant had agreed to pay the plaintiff for the board and care of his son. That his relations subsequent to such agreement with her were improper in no way tended to disprove her claim. The only possible ground for the admission of this testimony would be that it was offered by way of impeachment to prove her character such that she could not be believed. To this there are two answers: First, that evidence of character is not admissible in civil cases, except in the limited number of such cases where character itself is at issue; second, that if admissible it is to be proved by evidence of general reputation and not by proof of specific occurrences.

'The general rule subject to some exceptions * * * is that in a civil action the character of neither party thereto, nor of any other person, is involved and it cannot be made the subject of ...


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