97 N.Y.S. 838 | N.Y. App. Div. | 1906
The plaintiff has recovered a judgmént for injuries to a painting alleged to have been caused while in the defendant’s possession as a
The respondent also contends, under the authority of Maghee v. Camden & Amboy R. R. Co. (45 N. Y. 514), that-the defendant, 'having departed from the terms of the.orgl contract testified to by the plaintiff by conveying the property over a portion of the route" by car instead of all the way by Van without rehandling, became an insurer without regard to. the exemption-contained in the shipping receipt, but'the difficulty with this position is that we cannot know whether the jury resolved that question in ..favor of the plaintiff. The defendant denied the making of any such agreement and for. aught that we know the jury may have found that none was made. Indeed, that question was not distinctly presented to the jury by the learned trial court, and the .jury may never have passed upon it, at all. Were the question presented it might be necessary to ' determine whether the alleged parol agreement constituted a variance of the written instrument, and whether all the prior negotiations were merged into the written receipt.
Irrespective of the foregoing, this judgment will have to be reversed-for an error in the admission of evidence... Thé plaintiff was -permitted to prove as a part of her casé statements made by one of the defendant’s servants after the delivery of the property, to -the effect that the goods Were not in good condition- when, delivered. Manifestly this was reversible error, because upon no possible theory could the defendant be bound by the admission" of its employee after the transaction. -
The judgment and order must - be -reversed and a new trial granted, costs, to abide the event.
/ Hirschbérg-, P. J„ Woodward, G-atx.or and Bich, JJ., concurred.
Judgment and order reversed and new trial -granted, costs :to abide the event. ■ • -
Sic.