Wheeler & Wilson Manufacturing Co. v. McLaughlin — 28 N.Y. St. Rep. 372

Majority

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The Wheeler & Wilson Manufacturing Co., App’lt, v. James McLaughlin, Resp't.

(Supreme Court, General Term, Third Department,

Filed December 11, 1889.)

Headnote

1. Replevin:—Evidence.

In an action to replevy a sewing machine plaintiff asked his witness, “ Is this paper the lease and are the conditions in this paper the conditions upon which defendant came into possession of the machine?” The justice allowed the question and admitted the lease, although there had been no-proof made that defendant ever executed the paper. Held, error.

3. Same—Custom.

PlaintiS was allowed to prove “in what way and method the plaintiff authorizes agents to dispose of machines.” Held, that such a custom could not be shown.

3. Service of process—Constable’s return not conclusive.

On the return day of the summons defendant appeared by attorney, specially, and offered to prove that, although at his home at the time of the alleged service, no paper whatever in the action was ever served upon him. The justice held that the constable’s return was conclusive. Held, error.

Appeal from judgment of county court, reversing judgment of a justice’s court.

Action to replevy a sewing machine.

Charles Irwin, for app’lt; John E. Van Etten & Son, for resp’t

This is an appeal from a judgment of the Ulster county court, reversing a judgment of a justice’s court. We think that the justice before whom the case was tried made several erroneous rulings, for which the judgment was properly reversed by the county judge.

For instance, paper “D.” was the alleged lease under which the plaintiff claims defendant had the machine which was the subject of the action. Bowne, a witness for the plaintiff, was asked: Is this (paper D.) the lease, and are the conditions in this paper the conditions upon which the defendant came into possession of the machine? Answer: Yes; paper offered in evidence and re: ceived; there was no proof in the case that it had ever been executed by the defendant; the defendant made the proper objections to the evidence. The amended return does not cure the

p. 373

defect The original return showed that the lease was received in evidence on the direct examination of the witness ; that defendant asked and was refused leave to cross-examine the witness before its reception, and it was received generally. Conceding that the conclusion of the justice as to the purpose of offering paper “ D." in evidence, which he gives in his amended return, instead of the evidence and proceedings on the trial, was correct, the error is not cured. It was not correct to offer such paper in evidence to show thetermsof thedefendant’sagreementwithoutshowingits execution.

The justice, also, erred in receiving papers “B.” and “C.” There was no proof of the authority of Smith or of Mahar. The justice, also, erred in overruling the objections to the questions at folios 54 and 55 of the case. It was not proper or material to show the custom of plaintiff in authorizing agents to sell sewing machines, and the answers to the questions may have affected the finding of the jury.

On the return day mentioned in the summons defendant ap- • peared by his attorney specially, and insisted before the justice that neither the summons nor any paper in the action were ever served on him personally, although at the time of the alleged service he was at Kingston, and offered to prove the fact, and moved for a dismissal of the suit. The court ruled that the constable’s return was conclusive, and such ruling necessarily excluded the evidence offered. We think that the justice should have received the evidence offered by the respondent, and that the decision that the return of the officer was conclusive was erroneous. See Wheeler v. N. Y. & Harlem R. R. Co., 24 Barb., 415 ; Waring v. McKinley, 62 id., 621.

The judgment of the county court should be affirmed, with costs.

Learned, P. J., and Landon, J., concur.