Wheeler & Wilson Manuf'g Co. v. McLaughlin

Putnam, J.

This is an appeal from a judgment of the Ulster county court, reversing a judgment of a justice’s court. We think that the justice before whom the case was tried made several erroneous rulings, for which the judgment was properly reversed by the county judge. For instance, Paper D was the alleged lease under which the plaintiff claims defendant hád the machine which was the subject of the action. Bowne, a witness for the plaintiff, was asked: “Is this [Paper D] the lease, and are the conditions in this paper the conditions upon which the defendant came into possession of the machine? Answer. Tes. (Paper offered in evidence, and received.)” There was no proof in the case"that it had ever been executed by the defendant. The defendant made the proper objections to the evidence. The amended return does not cure the defect. The original return showed that the lease Avas received in evidence on the direct examination of the witness; that defendant asked, and was refused, leave to cross-examine the witness before its reception, and it was received generally. Conceding that the conclusion of the justice as to the purpose of offering Paper D in evidence, which he gives in his amended return, instead of the evidence and proceedings on the trial, is correct, the error is not cured. It was not correct to offer such paper in evidence to show the terms of the defendant’s agreement without showing its execution.

The justice also erred in receiving Papers B and C. There was no proof of the authority of Smith or of Maher. The justice also erred in overruling the objections to the questions at folios 54 arid 55 of the case. It was not proper or material to show the custom of plaintiff in authorizing agents to' sell sewing-machines, and the answers to the questions may have affected the finding of the jury.

On the return-day mentioned in the summons, defendant appeared by his attorney specially, and insisted before the justice that neither the summons nor any paper in the action was ever served on him personally, although, at the time of the alleged service, he was at Kingston, and offered to prove the fact, and moved for a dismissal of the suit. The court ruled that the constable's return was conclusive, and such ruling necessarily excluded the evidence offered. We think that the justice should have received the evidence offered by the respondent, and that his decision that the return of the officer was conclusive was erroneous. See Wheeler v. Railroad Co., 24 Barb. 415 ; Waring v. McKinley, 62 Barb. 621 . The judgment of the county court should be affirmed, with costs.