Odell v. McGrath

21 A.D. 252, 47 N.Y.S. 601

Opinion

Per Curiam :

’ This is an action to recover the possession of personal, property. The defendant based his claim of title: upon a chattel mortgage, .executed by the plaintiff’s wife, whom he alleged to have been the -former .owner. This mortgage -was put in evidence as part of the -defendant’s proof. The plaintiff’s wife was then called in. rebuttal -to show that the chattels in controversy in the present suit, were purchased by her. subsequently to the execution of .the mortgage. -The court,- under1 exception by the plaintiff,' excluded the testimony as - .not being in rebuttal. This ruling was plainly erroneous, and precluded the plaintiff from proving what would have been a perfect ¿answer to the defendant’s, .case if .established by evidence ■ which the jury believed. 'The error, therefore, was serious,’ and demands a reversal of the judgment.

All concurred.,

Judgment reversed and-, new. trial granted, costs to. abide the event. ’