Davis v. Reflex Camera Co.

105 A.D. 96 | N.Y. App. Div. | 1905

Rich, J.:

The plaintiff brought this action to recover moneys alleged to have been loaned by him to the defendant, while acting as its secretary and treasurer. The defendant denied this allegation, and interposed a defense which it will be unnecessary to mention, in view of the disposition we are to make of this appeal.

The judgment rendered in favor of the plaintiff upon the verdict of the jury must be reversed, because of exceptions taken upon the trial. The plaintiff, after giving evidence tending, to show the amount due .and owing, together with an acknowledgment of the indebtedness by defendant, called his father as a witness, who was permitted to testify that he loaned the company money from time to time, and was then asked : “ And kept it going in that way ? ” Counsel for defendant objected to this question; the objection was overruled, whereupon an exception was taken, and the witness answered : “Tes, sir.” He was then asked : “ And you had to sue for your own money, too, Mr. Davis, didn’t you?” Counsel for defendant objected to this question as immaterial, irrelevant and incompetent and not within the issue. The objection was overruled and an exception was taken by the defendant. Plaintiffs counsel then asked: “Ton had to sue for part of your money?” and the witness answered, “Tes, sir.” Ho objection was taken to the last question, but it was a substantial repetition of the one preceding, and the objection and exception are available. This evidence did not tend in any way to prove the alleged indebtedness to the plaintiff, or to corroborate the testimony he had given. It might easily have prejudiced the jury, and the presumption is that it did. The evidence was clearly incompetent and improper, and its admission was error. Other exceptions were taken to the admission of evidence upon the trial, and to the charge to the jury, but as the judgment is to be reversed for the reasons already stated, it is unnecessary to discuss them.

Judgment and order reversed, with costs.

IIirschberg, P. J., Bartlett, Woodward and Jenks, JJ., concurred.

Judgment and order of the City Court of Yonkers reversed and new trial ordered, costs to abide the event.