Azzara v. Waller ( 1904 )

FREEDMAN, P. J.

To sustain the plaintiffs’ cause of action herein, it was essential to show that a judgment had been obtained against these plaintiffs in favor of one Wilkins, which judgment establishes the ownership of a horse in Wilkins, which horse had been sold to the plaintiffs by these defendants under an implied warranty. In offering this record in evidence this is what occurred:

“Plaintiff’s Counsel: Here is the record produced by the attendant of the Second Municipal Court, which I offer in evidence. Defendants’ Counsel: Objected to, on the ground that it is immaterial, irrelevant, and incompetent, and not binding on these defendants. The Court: Objection overruled. Record allowed. Exception.”

Under the decision in the case of Levy v. Fidelity & Deposit Company of Maryland (Sup.) 87 N. Y. Supp. 487, this was error.

Judgment reversed. New trial granted, with costs to appellants to abide the event.

MacLEAN, J., concurs.