
    Artemas H. Holmes, App’lt, v. David H. Moffat, Jr., Resp't.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 15, 1890.)
    
    1. Trial—Evidence—Direction by court to jury to disregard testimony ALREADY ADMITTED.
    The testimony of witnesses ineluding irrelevant statements was read upon a trial before objection made and counsel promptly moved to strike it out and the motion was denied. On subsequent reflection the court directed the jury to disregard the matter specified. Held, no error.
    2. Same.
    The jury was'informed that the objectionable testimony was not before them at all. And such instruction coupled with the positive direction to disregard it was effectual for the purpose intended.
    Appeal from a judgment of the general term, first department, entered on an order affirming a judgment of the circuit in favor of defendants entered on the verdict of a jury.
    The action is for false representations and deceit in the sale to plaintiff of certain mining stocks of the Little Pittsburg Consolidated Mining Co., and was brought against defendant Moffat and Jerome B. Chaffee as copartners.
    
      George H. Adams, for app’lt; Robert Sewell, for resp’t.
    
      
       Affirming 9 N. Y. State Rep., 41.
    
   Parker, J

During the progress of the trial the defendant read in evidence the testimony of several witnesses taken on eommission. This included, similar, hut irrelevant statements made by three of them. That of the first was read before objection made and counsel promptly moved to strike it out and the motion was denied. As to the other witnesses the objectionable testimony was received under exception.

Subsequent reflection led the court to the conclusion that it should not have been admitted, and in the charge to the jury an attempt was made to rectify the error.

The court referring to the improper evidence said: “I withdraw it from your consideration, as I do not believe it to be proper or material evidence * * * I do not think my attention was directed to it with that degree of care that it should have been; and therefore it got in. I think it my duty to say to you that that particular portion of the answer to the seventh interrogatory which I have stated as to these miners making up a pool for the purchase of this stock, is not before you as evidence at all.” The remarks we have quoted afford an illustration of the embarrassment which not infrequently confronts a trial judge. Occasionally he finds that evidence has been admitted which would not have been had his attention been sharply called to it when offered. The omission of counsel to do so may have been induced by doubt as to the correctness of his position; or because he did not' at the time regard it important; or, as sometimes happens, because he deemed it more desirable to secure an exception than to, exclude the evidence. And the question then as now presented is, has the court the power to save the parties from the consequences which must flow from the error if not corrected ? It is now settled that if the mistake be immediately discovered and the evidence promptly stricken out. the error will be deemed cured and the exception to its admission deprived of all potency. Gall v. Gall, 114 N. Y., 109; 22 N. Y. State Rep., 746.

How while the court did not in terms strike the evidence from the record, that which it did do was, so' far as its effect upon the jury was concerned, equivalent to such action. They were informed that the objectionable testimony was not before them as evidence at all. And we are of the opinion that such instruction coupled with the positive direction to disregard it must be deemed to have been effectual for the purpose intended.

The course adopted by the trial court would seem to be in harmony with the theory upon which the practice governing trials by jury is founded. It assumed that the jury will give heed to the suggestions of the court. If the court err in its charge and upon timely discovery correctly instruct the jury, the mistake is righted. Because an error can be so readily and effectively corrected; a general exception to each and every of several responses of the court to requests to charge is not available. The exception must be specifically taken. For the reason that if the court’s attention be thus called to a faulty direction it may at once correct it A proper administration of justice requires that an effort be made to correct rather than perpetuate errors. If an erroneous instruction upon a material point, duly excepted .to, be not corrected, the appellate court is. bound to presume that the verdict of the jury was influenced thereby, and a reversal will be had. Mo reason suggests .itself for indulging in a different presumption when the instruction tends to support a judgment, if, as in this case, there is other evidence upon which the verdict could have been based. ■ It has been established by well considered authority in this state, that when evidence is admitted upon a trial by jury, eithfer without an exception, or properly under objection, which for any reason should not be considered by the jury, it is not error for the court to refuse to strike it out. The remedy of the party is to ask the court to instruct the jury to disregard it. Marks v. King, 64 N. Y., 628; Platner v. Platner, 78 id., 80.

It is insisted that another rule applies when objection is timely made to irrelevant evidence. If that were so, then in the case before us the counsel could be relieved from the effect of his error in permitting the first answer to be read in evidence without objection, by a request to the court that the jury be directed to disregard it, and, at the same time, retain his exception to the subsequently admitted testimony of like character. Thus, his own error would prove of advantage to him. The effect of the improper evidence would be destroyed by the required instruction, while a valid exception as to the admission of subsequent and similar testimony would remain, leaving the court powerless to relieve the parties from the effect of its mistake. Fortunately trial courts are not hampered by such inconsistent and impracticable rules. «

The supreme court of the United States, in Pennsylvania Co. v. Roy, 102 U. S., 459, has held that where the court instructs the jury to disregard testimony, and there is other evidence to support the verdict, it will be presumed that the instructions were obeyed, and the error in its admission cured.

Our attention has not been called to any decision of this court which we regard as necessarily in conflict with such conclusion. In Erben v. Lorillard, 19 N. Y., 299, it appears from the opinion of Judge Denio, that the improper evidence related to the measure of damages, and after its admission the trial proceeded on ‘the assumption that it established a rule which controlled the conduct of the trial, so that when the court instructed the jury to disregard the improper testimony the case was without other evidence warranting the verdict given. A reversal was therefore required. Furst v. Second Avenue Railroad Co., 72 N. Y., 542, does not present the question. Against the objection of defendant improper evidence was admitted. Plaintiffs counsel discovering the error proposed to have it stricken out, and the proposition was declined. The trial court did not attempt to correct the error it had made, and Judge Bapallo in delivering the opinion of the court said: “ The court made no ruling, and gave no instruction to the jury ■on the subject”

The views expressed lead to the conclusion that the instruction given to the jury by the trial court must be deemed to have corrected the error complained of.

The learned court at general term expressed no difference of opinion except as to the question we have considered. It satisfactorily discussed such other exceptions as required consideration. The judgment should be affirmed.

All concur.  