Zimmerman v. Shapiro

55 Misc. 299, 105 N.Y.S. 104

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1907
• Status: Published

Opinion

Per Curiam.

This action was brought to recover $165, for work, labor and services. The only issue contested upon the trial was as to whether the defendant had paid the plaintiff this amount. Several trivial grounds are urged for the reversal of this judgment which it is not necessary to consider. The record," however, discloses one serious error which calls for the reversal of this judgment. The plaintiff’s counsel offered in evidence a receipt book in the handwriting of the plaintiff’s partner. This book was received over the objection and exception of the defendant. Its admission was clearly error; and, in view of the sharp conflict in the testimony upon the issue of payment, it is impossible to say that the defendant was not prejudiced with the jury on account of its admission. The fact that, after the book had been marked in evidence, over the objection and exception of counsel for the defendant, the latter asked that it should be shown to the jury was not a waiver by him of the benefit of the exception which he had taken to its admission.

Present: Gildersleeve, Seabury and Platzek, JJ.

Judgment reversed and new trial ordered, with costs tr • appellant to abide event.