
    Francis B. Brewer, App’lt, v. Clarence Delafield, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1892.)
    
    Justices’ court—Objections to evidence.
    While, as a general rule, the grounds of objection are not required to be stated in trials before a justice of the peace, yet where the trial has been ■conducted by counsel, and certain grounds of objection to the reception of evidence were in fact stated, an objection cannot be raised on appeal for the first, time where it might have been obviated if raised on the trial, and the evidence did not cau.e the rendition of the judgment.
    
      Appeal by the plaintiff from a judgment of the county court oE Chautauqua county, entered January 5,.1891, reversing a judgment in favor of the plaintiff, recovered in a court of a justice o£ the peace.
    
      S. W. Mason, for app’lt; 0. B. Oita-way, for resp’t.
   Macomber, J.

The plaintiff, who is the owner of the Westfield gas works, in the town of Westfield, N. Y., recovered a judgment before a justice of the peace for the sum of thirty-seven dollars and costs, for damages done to the plaintiff’s gas pipe, and by the escape of 10,000 feet of gas from a meter, caused, by the acts o£ the defendant or his employees. On appeal by the defendant to-the county court, the judgment of the justice was reversed upon the ground that a question put to the plaintiff’s principal witness, was incompetent

It appeared in evidence that a bill for thirty-seven dollars had. been made out against the defendant; and one Keener, who was. in the employ of the plaintiff, presented it to the defendant, and stated to him that the claim was for breaking the gas mains of the plaintiff three times, and letting gas escape from the gasometer. The witness told the defendant that the amount of the damage was thirty-seven dollars. Thereupon the defendant said that he would attend to the matter as soon as he could get around to it, and' that as soon as he could get something out of the town he would fix it. He made no objection to the bill, either as to. his own liability for any part thereof, or to the amount claimed. Evidence was given that the amount of gas which escaped was-ten thousand feet. Then the following question was asked the witness:

“Q. Was the bill presented a fair value for the damage for those breaks ? Objected to as immaterial and incompetent, and not a proper measure of damages; no foundation laid for making defendant liable for damages, and not within the issues. Objection overruled and exception. A. Yes, sir, it was worth that, and more than that; these damages were done while digging-the ditches for the^water works in Westfield.” The learned county-judge pronounced this evidence incompetent under the authority of Morehouse v. Mathews, 2 N. Y., 514, which holds that, in general, it is .not competent for witnesses to state opinions or conclusions from facts without such facts are known to them, or derived from the testimony of others.

It will be noticed that though many grounds of objection were' stated, this particular ground, relied upon by the learned county-judge, viz., that this was a mere expression of opinion, was not made in the trial court. While it is true that the grounds of the objection are not required, perhaps, to be stated in trials before justices of the peace, yet, where, as in this case, -the defense was conducted by counsel, and certain grounds of objection were; in fact stated which were untenable, and the objection now stated! by the county judge was not in fact made, we think that it is too. late to raise the same upon appeal for two reasons : (1) if it had been made at the trial it might have been obviated, and (2) it is «clear that such evidence did not cause the rendition of the judgment. At the trial there was no dispute over the amount of the bill

The defendant himself was called as a witness, the whole purpose of whose testimony was designed to transfer liability for the •damages from him to a sub contractor by the name of Williams. This leads us to the conclusion that the error which the learned county judge held to be in the record, even if it actually existed, was not of sufficient moment to justify a reversal of the judgment under § 3063 of the Code of Civil Procedure, which provides that the appellate court must render judgment on appeal according to the justice of the case, and without regard to technical errors or ■defects which do not affect the merits.

We think the judgment of the justice of the peace was correct, under the facts disclosed, and that the judgment of the county •court should be reversed.

Judgment of the county court reversed and that of the justice of the peace affirmed, with costs of this appeal in this court and in the county court.

Dwight, P. J., and Lewis, J., concur.  