Bishop v. Hendrickson , 42 N.Y. St. Rep. 37 ( 1891 )

Clement, C. J.

We have not the power, on the record before us, to review the questions of fact. No order was entered denying the motion for a new trial on the minutes, and the appeal is taken from the judgment only. Piel v. Reinhart, 127 N. Y. 381, 27 N. E. Rep. 1077. Anna Chamberlain was called as a witness for the plaintiff, and asked to describe a christening robe borrowed by her from the plaintiff. The testimony was objected to as irrelevant and immaterial. The learned judge said: “Of course, they have to connect it with the one delivered; if not, it will be deemed stricken out.” The defendants excepted, and the witness gave a description; and then, under exception, stated that the lace upon it cost very nearly $5,000. On cross-examination, the witness testified that she never saw the robe but once, and that was 32 years ago. This action was brought for conversion of a large •number of articles, and the most valuable one was an infant’s robe, and the •counsel for plaintiff offered the testimony to show the value of the robe, and failed to prove that Mrs. Chamberlain ever saw the one in question. The counsel for the defendants moved to strike out the testimony, which motion was denied. We think it was error to admit the testimony of Mrs. Chamberlain on this point, and it seems clear that her testimony was prejudicial to the case of defendants. The verdict was much less than the value of the robe as testified to by the witness, and we cannot determine how much the jury awarded as its value. It is contended on the appeal, by the counsel for the plaintiff, that the testimony was relevant and material, and we have no doubt that he so claimed before the jury. Judgment reversed, and anew trial granted; costs to abide the event.