Cook v. Badt

Appellate Terms of the Supreme Court of New York

Cook v. Badt

121 N.Y.S. 629

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 10, 1910

StatusPublished

This text of 121 N.Y.S. 629 (Cook v. Badt) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cook v. Badt, 121 N.Y.S. 629 (N.Y. Ct. App. 1910).

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Opinion

LEHMAN, J.

The plaintiff at the trial produced testimony of an alleged attempt by defendant to compromise the claim upon which plaintiff is suing. Her attorneys concede that this constitutes error, but claim that it was not prejudicial, because the defendant thereafter gave some testimony on the same subject. The defendant’s testimony was, however, intended solely to meet the unfavorable inference necessarily produced by the incompetent testimony, and in no way cured the error. Plaintiff’s testimony is contradicted on material points by different witnesses, and it is apparent from the record that the error is not merely technical, but material.

The plaintiff’s testimony as to damages is also insufficient to sustain a judgment for the-sum of $150. Conceding that the defendants are liable in this action for all damages to plaintiff’s property caused by the leak in the radiator, I am unable to find any competent proof of damage which, considered in its most favorable light, would entitle the plaintiff to a judgment for more than $120.

Judgment should be reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.

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LEHMAN, J.

The plaintiff at the trial produced testimony of an alleged attempt by defendant to compromise the claim upon which plaintiff is suing. Her attorneys concede that this constitutes error, but claim that it was not prejudicial, because the defendant thereafter gave some testimony on the same subject. The defendant’s testimony was, however, intended solely to meet the unfavorable inference necessarily produced by the incompetent testimony, and in no way cured the error. Plaintiff’s testimony is contradicted on material points by different witnesses, and it is apparent from the record that the error is not merely technical, but material.

The plaintiff’s testimony as to damages is also insufficient to sustain a judgment for the-sum of $150. Conceding that the defendants are liable in this action for all damages to plaintiff’s property caused by the leak in the radiator, I am unable to find any competent proof of damage which, considered in its most favorable light, would entitle the plaintiff to a judgment for more than $120.

Judgment should be reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.

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Bluebook (online)

121 N.Y.S. 629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-badt-nyappterm-1910.