Odell v. McGrath — 47 N.Y.S. 601

Majority

p. 601

(21 App. Div. 252.)

ODELL v. McGRATH.

(Supreme Court, Appellate Division, Second Department.

October 26, 1897.)

Headnote

Trial—Rebuttal Evidence.

Where, in an action to recover personal property, the defendant bases his title upon a certain chattel mortgage executed by plaintiff’s wife, and puts the mortgage in evidence, it is error to exclude her testimony, offered in rebuttal to show that the chattels in controversy were not purchast, her' until subsequent to the execution of the mortgage.

Appeal from city court of Yonkers.

Action by Charles Odell against John T. McGrath. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, J J.

Adrian M. Potter, for appellant.

Ralph Earl Prime, Jr., for 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, under 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.

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