Hirsch v. Sherman, 123 Misc. 419

Hirsch v. Sherman

123 Misc. 419 | N.Y. App. Term. | 1924

Per Curiam.

Plaintiffs sued for the value of goods sold and delivered to the defendant. Defendant conceded half the bill and tendered that amount into court. As to the other half he claimed that the goods were unsatisfactory and had been returned or tendered. The question litigated was the condition of the goods *420and the date of their return, involving as a corollary whether that date was a reasonable one. The defendant’s manager was allowed to testify to a conversation over the telephone affecting the date of the return had with one of the plaintiffs, who was not present in court. Plaintiffs’ counsel objected unless the voice of the speaker was identified, and the court thereupon asked the following questions: “ The Court: Did you ever speak to the plaintiff? The Witness: No sir. The Court: How did you know you were talking to Mr. Rock? The Witness: I asked him was this Mr. Rock, and he said ‘ Yes.’ ”' The objection was thereupon overruled and the testimony given. This was plainly insufficient to identify the voice as that of Mr. Rock, and undoubtedly influenced the court upon a close conflict of fact.

The judgment is also incorrect in form under section 173 of the Civil Practice Act.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Bijue, Mullan and Levy, JJ.

Judgment reversed and new trial ordered.