Zimmerman v. Shapiro — 105 N.Y.S. 104

Majority

p. 104

(55 Misc. Rep. 299)

ZIMMERMAN v. SHAPIRO.

(Supreme Court, Appellate Term.

June 27, 1907.)

Headnote

Trial—Exceptions to Evidence—Waiver.

The benefit of defendant’s exception Is not waived where, after a book , had been admitted and marked in evidence over his,objection and exception, he asked that it be shown to the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 975.]

Appeal from Municipal Court, Borough of Manhattan, Fourth District. _ .

_ Action by Isaac Zimmerman against Ike Shapiro. From a judg-. ment for plaintiff, defendant appeals.

Reversed, and new trial ordered.

Argued before GIRDERSLEEVE, P. J., and SEABURY and PLATZEK, JJ.

Oscar Englander, for appellant.

Charles S. Rosenthal, for respondent.

This action was brought to recover $165 for work, labor, and services. The only issue contested upon the trial was as to whether the defendant had paid the plaintiff this amount. Several trivial grounds are urged for the reversal of this judgment, which it is not necessary to consider.

The record, however, discloses one serious error which calls for the reversal of this judgment. The plaintiff’s counsel offered in evidence a receipt book in the handwriting of the plaintiff’s partner. This book was received over the objection and exception of the defendant. Its admission was clearly error, and, in view of the sharp conflict in the testimony upon the issue of payment, it is impossible to say that the defendant was not prejudiced with the jury on account of its admission. The fact that after the book had been marked in evidence, over the objection and exception of counsel for the defendant, the latter asked that it should be shown to the jury, was not a waiver by him of the benefit of the exception which he had taken to its admission.

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