
    Anthony W. Voltz, Resp’t, v. Benton H. Wilson and Homer Van Buskirk, App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    Evidence — Cbedibimty oe witness.
    Where in an action lor fraudulent representations in the sale of certain mortgages R., a witness, had stated that one of the defendants, in speaking of the sale, used the expression “all right” in connection with such mortgages, a question to a subsequent witness as to whether B. told him that said defendant had said he sold the mortgages as being all right is substantially directed to the same subject-matter and is not subject to the objection that R. had not been asked if he made a like statement to the last witness.
    Appeal from a judgment of the county court of Erie county, entered upon the verdict of a jury.
    
      Charles F. Whitcher and John T. Joyce, for resp’t; Frank M. Loomis, for app’lts.
   Macomber, J.

The action was brought to recover damages on account of the fraudulent representations made by the defendants upon a sale to the plaintiff oí two chattel mortgages held by them, and which they had received from a man by the name of James Ives.

The evidence in behalf of the plaintiff was directed to an effort to show that the defendants, by the mouth of Wilson mainly, had represented, before the sale of the chattel mortgages to the plaintiff, that the same were good or all right, and that Wilson knew, or had been notified, that Ives did not own the property so purporting to be covered by the mortgages. This was the question at issue. Presumably it was fairly presented to the jury and their verdict, in the absence of any exceptions to the instructions, would be conclusive. The charge of the learned court does not appear in the «case and no complaint is made in regard thereto by the appellants.

We have examined the several exceptions to the reception and rejection of evidence and find in them nothing worthy of comment, save those arising upon the evidence of the witness Whitcher, The competency of this evidence is to be determined by the previous .testimony given by the witness Root.

Whitcher was asked as follows : “ Q. Did Root say to you that Wilson told him that he sold these mortgages as being all right ? A. Not in exactly those words.

Q. Give me the words exactly ? A. Root said that Wilson told him that while he didn’t guarantee the mortgages, the payment of them, he sold them as being good and all right, and as mortgages they were good and all right”

These questions were respectively objected to and their answers excepted to upon the ground solely that Root had not been asked whether he made a like statement to Whitcher. Recurring now to the witness Root the following evidence was given by him : “ Q. Did Wilson tell you at that time that when he sold those mortgages they were all right ? A. I cannot swear to that, I will tell you what he did tell me.

“ Q. Did he make use of the expression all right in connection with these mortgages ? A. Yes, sir.

“By the court — Q. Who? A. Wilson.”

It will be seen that the questions asked of Whitcher were substantially directed to the same subject-matter as those addressed to the witness Root and that consequently the objection as made was untenable and was properly overruled by the county judge.

The judgment should be affirmed.

Barker, P. J., and Dwight, J., concur.  