
    RAVEN v. SMITH.
    (Supreme Court, General Term, Second Department.
    May 14, 1894.)
    Appeal—Admission of Evidence—Harmless Error.
    Error in admitting incompetent evidence is cured where competent evidence of the same facts is afterwards given.
    
      Appeal from circuit court, Westchester county.
    Action by John Raven against William R. Smith for services performed under a contract. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.
    For former report, see 24 N. Y. Supp. 600.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    J. K. Bowen, for appellant.
    Frederick W. Clark, for respondent.
   PRATT, J.

The plaintiff testified under exception that his men reported to him that they had been stopped from work, having been discharged by defendant. That did not injure defendant, for the fact of being stopped was testified to by another witness, and was not contradicted by defendant, who went upon the witness stand at a later stage of the trial. It is also objected that plaintiff was allowed to put in evidence a copy of a notice served by him on defendant, without having previously given notice for the production of the original. Such notice was given at the trial after defendant had failed to produce the original. No suggestion was made that defendant was unable to produce the original, or that he desired to do so. Nor did he, when upon the witness stand, deny receiving the notice. It is plain that defendant was not injured by receiving the copy in evidence. It appears that at the time the verbal contract was made a Mr. Fairchild was present, who made minutes of the conversation. Neither party asked him to produce his minutes, although he was examined as a witness. Had they been produced, it may well be that we should be better satisfied with the proof. But the parties elected to go to the jury upon their own testimony, and the verdict based upon it cannot be set aside as contrary to the evidence. So as to the measure of damages. Two witnesses testified the work could be done at a cost that would allow plaintiff a profit of five cents a cubic yard. Three testified that it would cost much more than the agreed price. As it is not disputed that plaintiff wished to proceed" at the contract price, and was not called upon to do so, the jury may well have believed the plaintiff’s witnesses. We cannot say the verdict was wrong. Judgment affirmed, with costs.  