
    Pauline N. White, Adm’rx, App’lt, v. Mary Davis, Adm’rx, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    1. Insanity—Witness not an expert.
    A witness who is not an expert in insanity may testify as to what a person said or did and may give his opinion whether such remarks or acts were rational; but he cannot express an opinion as to the general mental condition of the person, whether such opinion is based upon the particular remarks or acts as to which the witness testified or upon the evidence in general.
    2. Same.
    Such a witness cannot testify that the person acted like a man who was not right or that he acted queer ; but he may be asked whether he saw any change in the manner in which the person in question conducted business.
    Appeal from a judgment entered upon the verdict of a jury, aad an order denying the motion for a new trial.
    
      William J. Lynch and Abram Fling, for app’lt; Fréling JL„ Smith, for resp’t
   Andrews, J.

This action was brought by the plaintiff as administratrix of James White, deceased, against Richard Davis, and the latter having died, the defendant, who is his administratrix, was substituted in his place. The cause of action set up in the complaint was for money had and received hy said Davis, ara account of the sale of a certain meat stand in Washington market,, in the city of Rew York, which had been transferred to him by White as collateral security for certain indebtedness, after such indebtedness had been paid by White. The answer contained a general denial, and set up as counterclaims four promissory notes, given by White to Davis, amounting to $3,188.65 ; unpaid loans, amounting to $1,326, and a payment on account of White of $292.05. The plaintiff served a reply setting up a general denial of the allegations of the counterclaims, and as further defenses, payment, want of consideration, and the insanity of James White.

The action was tried before Mr. Justice Barrett and a jury, and after all the testimony on both sides had been taken, the court instructed the jury that if the indebtedness, to secure which the meat stand had been transferred by White to Davis, had been paid before Davis sold the stand, he had no right to sell it, and that plaintiff was entitled to recover the value of the stand, which had been proved to be $3,500 with interest amounting to $1,260, making a total of $4,760; but the court left it to the jury to determine on all the evidence whether such indebtedness had, in fact, been paid before the sale of the stand.

The court also instructed the jury that no defense to the counter-claims, set up on account of the promissory notes, had been proven, and that the defendant must be allowed the full amount of such notes, with interest. The court also instructed the jury that the defendant must be allowed for one of the loans amounting to $326, with interest, but excluded from the consideration of the jury defendant’s counter-claim of $1,092.05. No recovery was asked upon the loan of $1,000. The jury rendered a verdict in favor of the defendant for $257.39, and it is apparent, therefore, that in reaching that verdict, under the instructions of the court, they must have allowed the plaintiff the full amount of her claim of $4,760. A motion for a new trial was made upon the judge’s minutes and denied, and the case now comes before the court upon an appeal from the judgment entered upon the verdict, and from the order denying the motion for a new trial.

The first, second, third, fourth and fifth exceptions taken by the plaintiff’s counsel all relate to evidence in support • of the plaintiff’s claim, which was allowed in full by the jury, or to counterclaims excluded at the request of the defendant. If any error was committed, therefore, it was cured by the verdict and did not injure the plaintiff, and consequently such exceptions constitute no ground for a reversal of the judgment McGean v. The Manhattan Railway Company, 117 N. Y., 219; 27 St. Rep., 337; Tenny v. Berger, 93 N. Y., 524.

The plaintiff’s exceptions, six to fifteen inclusive, were all taken to the exclusion of testimony offered by. her in support of the defense of insanity set up to the counterclaims. Most of such exceptions were taken during the examination of the witnesses Elsey and Durando. After these witnesses had testified that they met White from time to time during the years 1882 and 1883, plaintiff’s counsel, instead of seeking to elicit from the witnesses testimony as to facts relating to White's conduct, endeavored to introduce in evidence the general opinion of the witnesses as to his mental condition. The questions asked and excluded by the court were as follows :

Q. From that condition of affairs, in which you saw him in, in your judgment was he capable of performing the duties of a business man ?

Q. Will you state what you observed in regard to his mental condition, in 1882 and 1883 ?

Q. From the conversation that you had with him, did he appear to you like a sane or insane man ?

Q. Will you state what is the condition you observed him in or what his condition was, from the observations that you made of his mental appearance ?

Q. Will you state what his mental appearance was from the conversation that you had with him from time to time ?

Q From his conduct towards you during 1882 and 1883, did you form an opinion as to his condition ?

Q. From the observations arising from your talks with him from time to time, did he appear to you like a person who is capable of taking care of himself ?

Bach of these questions called for the opinion of the witnesses, who were not experts, as to the general mental condition of White, and it has been settled by repeated decisions of the court of last resort, that such testimony is inadmissible. A witness who is not an expert may be allowed to testify to what a person said or did, and then he may be allowed, if he testifies to remarks made, or acts done, to give his opinion as to whether such remarks or acts were rational or irrational; but even if he testifies to particular words spoken, or particular acts done, he cannot then be allowed to go further than to express his opinion as to whether such words and acts were rational or irrational; he cannot then go on and give a general opinion, based upon such words or acts, as to whether the person was or was not insane; much less can he be allowed, as the plaintiff’s counsel sought to have a witness do, in the case at bar, to give a general opinion as. to the sanity or insanity of an individual, not based upon any facts whatever which are proven in the case. Clapp v. Fullerton, 34 N. Y., 190; O'Brien v. The People, 36 id., 276; Real v. The People, 42 id., 270; Hewlett v. Wood, 55 id., 634; Holcomb v. Holcomb, 95 id., 316. It necessarily follows that none of such exceptions were well taken.

Two other exceptions were taken by plaintiffs during the examination of the witness Durando. That witness was asked the question, “ What did he say ?’’ and he answered, “ He would grab me around the neck, and would want me to go with him, and I was very glad to get rid of him. He acted like a man that was not right.” On motion of the defendant’s counsel, the last sentence was stricken out as incompetent. The same witness was also asked the following question:

“ Q. In regard to his demeanor, was there anything else than grabbing hold of you and putting his arms around your neck ? A. He acted kind of queer, and I took him to his door.”

On motion of defendant’s counsel, this answer was also stricken out.

Under the decisions above cited, these answers were clearly incompetent, and no error was committed in striking them from the record.

The plaintiff’s counsel also took three exceptions during the examination of Burger and Ackerson, witnesses called on behalf of the defendant. The exceptions objected to and which the court allowed to be answered by these witnesses were as follows :

“ Q. Was there any change in his manner of conduct, or in his acts or conduct, during the time that you were with him ? What was Mr. White’s manner of conducting business ? Did you ever see any or know any change in his manner of doing business ?”

These questions called for a statement by the witnesses of any -fact within their knowledge concerning the matters inquired about, and not for opinions. It was held by the general term of this court, in Yeandle v. Yeandle, 24 St. Rep., 614, that questions almost identical were admissible in a case of this character, and the exclusion of such questions was one of the grounds upon which the judgment in that case was reversed. Moreover, as the question of W hite’s sanity or mental condition was not submitted to the jury, the'admission of testimony given in response to such questions cannot possibly have injured the plaintiff.

The twentieth exception taken by the plaintiff was to the refusal of the court to permit the plaintiff to go to the jury and submit to it the following questions:

“ First, as to whether there was any consideration for these notes or moneys alleged to have been paid by the intestate -defendant to the plaintiff’s intestate.
“ Second. Whether these notes were for mutual accommodation of the plaintiff’s and defendant's intestates, and without any actual consideration between the said parties.
Third. As to whether the said White, the intestate, at the time of the alleged delivery of these notes, was sane and in a mental condition to execute and deliver them; and if insane, that in that event the burden of proof is upon the defendant to show the actual consideration or value paid for the notes alleged in the counterclaim.”

We do not think that the exception taken to the refusal of the court to permit plaintiff’s counsel to go to the jury upon these questions was error. The production of the notes by the defendant made out a prima facie case, and the burden was then upon the plaintiff to prove, if she could, want of consideration. The plaintiff offered no evidence upon this point, except some loose testimony to the effect that White and Davis sometimes exchanged notes for mutual accommodation. There was no evidence, however, that the notes in question were given in this way, and if the question had been submitted to the jury, and the jury had found against the defendant as to the notes, the verdict would certainly have been set aside as not based upon any evidence in the case. The loan of the $326 was proven by the uncontradicted testimony of the witness Nelson, and the claim on account of the other alleged loan of $1,000 was withdrawn by the defendant’s counsel.

So far as the question of White’s sanity was concerned, there was no evidence in the case which wrould have justified the court in submitting that question to the jury. A variety of questions, besides those above mentioned, which were excluded by the court, were put by plaintiff's counsel to the witnesses called by him, and were answered by such witnesses, and some evidence was given as to White’s sayings and doings, which was competent evidence upon the question of his sanity. Such evidence, however, was meagre and inconclusive, and as there was evidence that White was addicted to the excessive use of alcoholic stimulants, such sayings and doings of White might as well have been attributed to intoxication as to insanity. We do not think the testimony m question would have justified the jury in finding that White was in such a mental condition as not to understand what he was doing when he gave the notes in question, and we think that no error was committed by the court in refusing to allow the counsel for the plaintiff to go to the jury upon the question of such mental condition.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., concurs.  