Lessler v. Bernstein

123 N.Y.S. 223

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 17, 1910
• Status: Published

Opinion

BIJUR, J.

Plaintiff sued defendant for goods sold and delivered. He testified that defendant had always represented himself to be Samuel Bernstein, and that the goods were sold to him under that name. Defendant, on the other hand, contended that' he was merely the agent or attorney in fact of Samuel Bernstein, and was, therefore, not personally liable.

Defendant, over plaintiff’s repeated objection, produced a number of witnesses, who were allowed to testify that defendant had never represented himself to them as Samuel Bernstein. The admission of this testimony was manifest error, and prejudicial to the plaintiff. Defendant seeks to justify its introduction by calling attention to the fact that plaintiff proved, by one of his own witnesses, that defendant had represented himself to him as Samuel Bernstein. That testimony, however, was perfectly proper in corroboration of plaintiff’s story. Even assuming, however, that it was irrelevant, it would, under the familiar rule, have justified only similar evidence on behalf of defendant in disproof of this testimony, to the effect, namely, that defendant had not represented himself as Samuel Bernstein to that witness. It could not, under any circumstances, warrant the introduction by defendant of a mass of wholly irrelevant evidence of no probative force on the issues involved, but clearly -designed, and evidently effective, to prejudice the minds of the jury against plaintiff’s case.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.