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Wintersteen v. Krumbhaar

119 A.D. 793 Court Third Department, Decision date 1907-05-24 English

Delivered by *794 Kellogg, J.:

Contents

Majority

p. 793
Abram H. Wintersteen, Respondent, v. George D. Krumbhaar, Appellant.
Third Department,
May 24, 1907.

Headnote

Evidence — sickness not relevant to show that hpuse was damp.
On the issue as to whether premises abandoned by a lessee were damp, evidence that members of the lessee’s family were sick with tonsilitis and lumbago is • inadmissible. The evidence standing alone does not show that the house was damp.
Appeal by the defendant, George D. Krumbhaar, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Madison on the 18th day of July, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of August, 1905, denying the defendant’s motion for a new trial made upon the minutes,
D. Raymond OoHb, for the appellant.
M. Id. Kiley, for the respondent.

Upon a trial'before the court and. jury the plaintiff recovered judgment upon the ground that lie had paid rent in advance for ■premises which were falsely and fraudulently misrepresented to him, and that on' account of the misrepresentations he had rescinded the lease and abandoned the premises. One of the'principal claims by the plaintiff was that the house was damp, and that at the time .of the rental- -it was distinctly understood that the premises must be dry. Over defendant’s objection plaintiff was allowed to prove, as tending to show "the dampness of tlie premises, that- while residing in the house the plaintiff’s youngest son was taken with a- cold and • tonsilitis, and that other- members of the family were sick with tonsilitis and lumbago. This was. clearly error, as standing salone it was not evidence legitimately .tending to. show that the house was damp. The judgment is-, therefore, reversed and a new trial granted, with costs to appellant to abide event.

. All. concurred; Sewell, J,, hot sitting.

Judgment and order reversed arid" new trial granted, with costs ■o appellant to abide event. .