Asher v. Case

33 A.D. 255, 53 N.Y.S. 729

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

Opinion

Parker, P. J. :

The action is to recover for the conversion of a bicycle. Upon the trial the plaintiff offered in evidence a receipt of which the following is a copy:

“ Hyde Park, N. Y., April 3, ’96.

“ Received from Mr. Asher the sum of $100 in full for one Relay Special to be delivered about April 15th or 20th, 1896.

“ J. M. CUMMIHCS.”

and stated that he offered it as the best evidence of when he paid for the bicycle. Defendant objected.to its reception on the ground that it was “ immaterial and incompetent, as there is no question in regard to the time the wheel was paid for.” The court received it for the purpose of showing the date, and the defendant thereupon excepted. The whole receipt was then read in evidence.

It appears from the record that no question whatever was made ■over the ownership by the plaintiff of the wheel in question, nor as • to the time when he paid for it. ' Indeed no contradiction was. made over his statement that lie had had and used the wheel about eight or ten months. As the ease was. tried, the, time of his paying for the wheel was uttérly irrelevant to any issue in the case. ' •

It is also to be noticed that the plaintiff does n.ot testify that this receipt was given to him at the time he paid for the wheel, nor that it was dated upon that day. He does not even testify that.it was the receipt which he received upon paying for the wheel. As it • went-in- evidence it was but the declaration of a third party, and-was, therefore, utterly incompetent as evidence of any statement in it. There is nothing in plaintiff’s testimony, nor anywhere in the case, that, gives it any verity whatever. It was, therefore,, error toad mit it, not only because it was immaterial to any issue presented, but also because it was in competent.

But the question remains, was.it harmful error ?

The only question sent- to the. jury was as to the value of the wheel. Plaintiff testified that it was worth fifty dollars. Four • witnesses on- defendant’s part, apparently-disinterested-, honest and ,' capable, testified that it was worth not to exceed twenty dollars. " Their valuation varied from ten dollars to twenty -dollars.. Evidently the statement, contained in the receipt, that the plaintiff paid-one hundred dollars for that wheel in April, 1896, was calculated to seriously influence, the jury in determining upon -its value, and although it was "received merely for the purpose of showing the date, its effect is, I think,, apparent in their verdict'of. forty-five dollars as the value of the wheel. By putting in this paper, finder the pretense of establishing an- utterly immaterial fact, plaintiff gets before the jury an unsworn statement that he gave one hundred dollars for the wheel.

I think there can be no doubt but that' the paper was calculated to prejudice the defendant, and inasmuch as it was erroneously admitted, there must be a new trial of this.case..

All concurred.

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