Bishop v. Hendrickson — 42 N.Y. St. Rep. 37

Majority

p. 37

Eleanor F. Bishop, Resp’t, v. Thomas H. Hendrickson et al., Ex’rs, App’lts.

(City Court of Brooklyn,

General Term,

Filed December 29, 1891.)

Headnote

Conversion—Evidence.

In an action for conversion of chattels, including an infant’s robe, a witness was allowed to testify as to the description and value of a christening robe which she had borrowed of plaintiff thirty-two years before and had not seen since. Held, error; as it was not connected with the one in question.

Appeal from judgment in favor of plaintiff, entered on a verdict.

Action to recover damages for conversion of goods by defendants' testator.

H. C. II. Ingraham, for app’lts; Sam’l E. Randall, for resp’t.

We have not the power, on the record before us, to review the questions of fact. FTo order was entered denying the motion for a new trial on the minutes, and the appeal is taken from the judgment only. Peil v. Reinhart, 127 N. Y., 381 ; 38 St. Rep., 913 .

Anna Chamberlain was called as a witness for the plaintiff and asked to describe a christening robe borrowed by her from the plaintiff. The testimony was objected to as irrelevant and immaterial. The learned judge said: “ Of course they have to connect it with the one delivered, if not, it will be deemed stricken out.” The defendants excepted, and the witness gave a description, and then, under exception, stated that the lace upon it cost very nearly $5,000.

On cross-examination, the witness testified that she never saw the robe but once, and that was thirty-two years ago. This action was brought for conversion of a large number of articles, and the most valuable one was an infant’s robe, and the counsel for the plaintiff offered the testimony to show the value of the robe, and failed to prove that Mrs. Chamberlain ever saw the one in question. The counsel for the defendants moved to strike out

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the testimony, which motion was denied. We think it was error to admit the testimony of Mrs. Chamberlain on this point, and it seems clear that her testimony was prejudicial to the case of defendants. The verdict was much less than the value of the robe as testified to by the witness, and we cannot determine how much the jury awarded as its value.

It is contended on the appeal, by the counsel for the plaintiff, that the testimony was relevant and material, and we have no doubt that he so claimed before the jury.

Judgment reversed,-and a new trial granted, costs to abide the event.

Osborne, J.,