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Moschowitz v. Flint

67 N.Y.S. 852 Court N.Y. App. Term Decision date 1900-12-26 English

Delivered by *853 GIEGERICH, J.

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p. 852
MOSCHOWITZ et al. v. FLINT.
(Supreme Court, Appellate Term.
December 26, 1900.)

Headnote

Contracts—Expert Witnesses—Evidence.
In an action to recover for services rendered in altering a coat, evidence of an expert called by plaintiffs as to “what would be the proper way to alter the coat, assuming that it was old and decayed in certain parts,” was competent.
Appeal from municipal court, borough of Manhattan.
Action by Moschowitz Bros, against Emma N. Flint. From a judgment for defendant, plaintiffs appeal.
Reversed.
Argued before BEEKMAN, P. J., and GIEGERICH and O’GORMAN, JJ.
Leopold Moschowitz, for appellants.
Edward J. Newell, for respondent.

The action is to recover the sum of $66 for services performed and materials furnished in making over an old-fashioned Persian lamb coat into an Eton short coat of later fashion. The answer sets up by way of defense and counterclaim that in making the alterations a large and valuable part of the fur of the original garment was cut off and retained by the plaintiffs, contrary to special agreement alleged to have been made between the parties litigant, to the effect that the plaintiffs should return to the defendant all portions of such fur as should not be necessarily used in the alteration of the garment. The testimony offered by the defendant tended to show that the coat was in good condition when delivered to the plaintiffs, and that the latter’s workmen cut away the bottom of it. The evidence produced in plaintiffs’ behalf, on the other hand, was to the effect that the coat was old and worn out in certain parts,—under the arms and on the shoulders,—and that the proper way of altering such a coat into an Eton coat was by raising it up under the arms, and not by cutting away the bottom. Nathan Greenberger, a witness called by the plaintiffs, after qualifying as an expert, was asked this question:

“Assuming that this garment that was made over by the plaintiff was in an old, decayed condition at certain parts,—under the arms and on the shoulders, —what would be the proper way of altering it into a short Eton coat?”

This was objected to by the defendant’s counsel. The objection was sustained, and the plaintiffs noted an exception. It was competent for the expert to give his opinion as to the manner in which the coat ought to have been altered. Conrad v. Trustees, 16 N. Y. 158 , 173; Ward v. Kilpatrick, 85 N. Y. 413 , 416; Jones, Ev. § 382; Abb. Tr. Ev. (2d Ed.) p. 720. Such testimony, if admitted, would have strengthened the plaintiffs’ contention with respect to the proper mode of making the alterations, and hence its exclusion was error calling for a reversal of the judgment.

The judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event. ■ All concur.

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