Green v. Plank — 48 N.Y. 669

Majority

p. 669

Cyrenius M. Green. Respondent, v. William H. Plank, Appellant.

(Argued September 25, 1871;

decided January term, 1872.)

Headnote

Action to recover possession of a canal boat, with damages for the taking and detention. After proof of title, of the taking, and that plaintiff had lost its use from the time of taking up to the time of trial, plaintiff, as a witness, was permitted to answer, under objection, the following question: “State the damages for the taking and withholding the boat during that time ?” Held, error, upon authority of case Matthews v. Matthews ( 2 N. Y., 514 .)

p. 670

Barlow & Kennedy for the appellant.

I). K M. Johnson for the respondent.

Lott, Oh. 0., reads for reversal.

Hunt and Leonard, CC., concur.

Earl, 0., reads for affirmance.

Gray, C., concurs.

(The Commissioners dissenting agree with the majority upon the question of law, but hold that the evidence received could, by no possibility, have injured defendant.)

Judgment reversed and new trial ordered, costs to abide event.