Majority
p. 185Cyrus Schofield, Resp’t, v. Samuel Kreiser, App’lt. (City Court of New York, General Term, Filed April 24, 1891.)
Headnote
Action to becoveb a chattel—Title to maintain—Evidence.Where, in order to maintain his action, plaintiff must prove his title to the chattels involved, and it appeared that he had leased them to one F., the agreement being that F. should pay certain sums of money before the title should vest in him. Held, error to exclude testimony offered by defendant tending to show the amount of the payments made.
Appeal from a verdict of a jury at trial term.
Abram Kling, for app’lt; McAdam & McCrea, for resp’t.
—The plaintiff leased to one Fairbanks certain chattels. The agreement between plaintiff and Fairbanks provided that Fairbanks should pay certain sums of money, as therein set forth; and it further provided that no title should be acquired by said Fairbanks until the said payments had been made as agreed. If all the payments had been made by Fairbanks, as specified in the agreement, the title would have vested in him. On the trial defendant’s counsel on cross-examination of plaintiff’s manager, at fol. 38, asked the following questions:
“Q. And you received from Fairbanks how much money?” Objected to as immaterial. Objection sustained. Exception.
“ Q. Will you tell the court and jury how much money in all you received from Fairbanks between the month of August, 1885, and the commencement of this action ? ”
Same objection, ruling and exception.
p. 186
We think the trial justice erred in excluding the questions. They tended to show the payments made, and if they amounted to the sum agreed to be paid, divested the plaintiff of the title to the chattels and vested the title in Fairbanks, and would have prevented a recovery by plaintiff in this action.
The judgment should be reversed and a new trial granted, costs ■ to abide the event.
Yan Wyok, J., concurs.