33 N.Y. 332 | NY | 1865
ACTION upon a warranty of a horse, made by defendant when he sold him to the plaintiff. After the warranty was properly established by evidence, the defendant offered to show what the former owner of the horse said of him some months previous to the time of sale and warranty, to the plaintiff, which was objected to by the plaintiff, but the objection was overruled, and the evidence of what the former owner had said of the horse was given to the jury, to which the proper exceptions were duly taken. The jury found for the defendant, and the General Term, on appeal, granted a new trial. The defendant appealed to this court, giving the usual stipulation.
HELD, that after the warranty of the horse by the defendant on his sale of him to the plaintiff, had been established by proper evidence, it was immaterial and improper to consider what the former owner of the horse had said to the defendant leading him to suppose his warranty true and justifiable. That it was no answer to the propositions of the plaintiff, that the defendant made his warranty under misinformation, and in good faith. That the real question was, the condition of the horse at the time of the warranty. Held also, that the admission of such improper testimony was calculated to mislead the jury as to the real question before them, and might have tended to produce the verdict given by them for the defendant. The court affirmed the judgment of the General Term, and in accordance with the defendant's stipulation, ordered judgment absolute for the plaintiff, and directed the Supreme Court to cause the plaintiff's damages to be ascertained by a writ of inquiry, and that judgment be entered thereupon for plaintiff, with costs. *333