Odell v. McGrath — 21 A.D. 252

Majority

p. 252

Charles Odell, Appellant, v. John T. McGrath, Respondent.

Headnote

. Replevin— defense that' a chattel mortgage covering the pi'operty was given by the owner — proof is competent that the mortgagor bought the pi’operty after the mortgage was given. •

When, in an action brought to recover possession of personal property, the defendant claims title under a chattel mortgage, offered in evidence by him, executed by the wife: of the plaintiff, who he alleges was the former owner of the property, it is erroneous for the court to refuse to allow the plaintiff to show, . in rebuttal, that the chattels in controversy were purchased by the wife after she executed the chattel mortgage. .

Appeal by the plaintiff, Charles Odell, from a judgment of the 'City Court' of Acnkers in favor of the defendant, entered in the . office of the clerk of said court on the. 3d day of February,. 1897, upon the verdict: of a jury.

■ Adrian M. Potter, for the appellant.

Ralph Earl Prime, Jr., for the respondent.

’ This is an action to recover the possession of personal, property. The defendant based his claim of title: upon a chattel mortgage, .executed by the plaintiff’s wife, whom he alleged to have been the -former .owner. This mortgage -was put in evidence as part of the -defendant’s proof. The plaintiff’s wife was then called in. rebuttal -to show that the chattels in controversy in the present suit, were purchased by her. subsequently to the execution of .the mortgage. -The court,- under1 exception by the plaintiff,' excluded the testimony as - .not being in rebuttal. This ruling was plainly erroneous, and precluded the plaintiff from proving what would have been a perfect ¿answer to the defendant’s, .case if .established by evidence ■ which the jury believed. 'The error, therefore, was serious,’ and demands a reversal of the judgment.

All concurred.,

Judgment reversed and-, new. trial granted, costs to. abide the event. ’