Kambesel v. Oldman ( 1934 )

Judgment in favor of the plaintiff on an oral contract for the finishing of fur garments reversed on the law and the facts and a new trial granted, costs to abide the event. The court committed prejudicial error at folios 1118 to 1123 in allowing hearsay to be adduced in respect of what the witness Apostoledes is said to have heard in the course of a conversation in the office of the plaintiff’s attorney, participated in by that witness, the plaintiff and the plaintiff’s attorney. The court likewise erred in refusing the request to charge at folio 1148. The defendants were entitled to have the court advise the jury as to the legal effect of a failure of the plaintiff to perform his part of the contract up to the time he claims it was breached by the defendants, if the jury so found. If the plaintiff had breached his contract prior to or on June twenty-seventh by reason of a failure to perform it, no right to recovery under the contract was possessed by the plaintiff. The main charge did not cover the subject-matter embodied in the request. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.