Giovanniello v. Horton — 101 N.Y.S. 20

Majority

p. 20

GIOVANNIELLO v. HORTON.

(Supreme Court, Appellate Term.

November 14, 1906.)

Headnote

Evidence—Admissions.

Where defendant admitted on cross-examination that she owed plaintiff more than she had tendered him, a judgment for defendant was erroneous.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1029, 1031.]

Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by Michael Giovanniello against Minnie Horton. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, DUGRO, and DOWLING, JJ.

Achille J. Oishei, for appellant.

Hirsh & Ehrhorn, for respondent.

Defendant upon cross-examination testified, in substance, that she owed plaintiff more than the sum paid into court. She testified that she owed plaintiff $11, $16, $12.10, $14, and $12, respectively, for the Shields, Dougherty, Wilkeshire, Newberry, and Hoffman coats, and other sums for second fittings. The tender was less than the aggregate of these amounts. The judgment should, therefore, not have been for defendant.

Upon the whole case, the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.