Opinion
July 29, 1910.
Allen Caruthers, for the appellant.
Henry L. Maxson, for the respondent.
Upon trial of this action in the Nassau County Court, the plaintiff had a verdict (the action being based upon the breach of a warranty in the sale of a cow) for the full value of the cow, together with fifteen dollars paid to a veterinary surgeon for his services in examining, treating and killing the animal, and for a post mortem examination. From the judgment accordingly entered, and from an order denying her motion for a new trial the defendant appeals. Later the defendant moved to set the verdict aside and for a new trial upon the ground of surprise and newly-discovered evidence, and from the order denying such motion she perfected a second appeal. The parties have stipulated that the appeals should be heard and decided as one, although presented by separate records.
The issues of fact were sharply contested, and the conclusion that the cow was sold under a warranty as to her health is supported by the evidence. The plaintiff's case as to the falsity of the warranty rests upon the contention that upon examination of the animal by a veterinary surgeon, about twenty days after her sale and delivery to the plaintiff, he found her suffering from tuberculosis so far advanced that, in his judgment, such condition had existed prior to the sale. Under the objection and exception of the defendant, he was permitted to testify that he killed the cow by order of the Commissioner of Agriculture. It is conceded that this was untrue. The falsity of that statement was not known to the defendant at the time of the trial, and constitutes the newly-discovered evidence upon which the defendant based her motion for a new trial. A witness called by the plaintiff (De Graff) was permitted, over defendant's objection and exception, to testify to a conversation had with defendant's husband, in which the latter stated, sometime prior to the sale, that the cow had an awful cough, and that the witness gave Mr. Vogelsang some medicine to use therefor, with directions how to use it, but that he did not dare to use it. This conversation was not in the presence of the defendant, and there is no evidence that she knew or that she was ever informed of it. She testified that she did not. The testimony of these witnesses referred to was necessarily of considerable weight in determining the crucial question of fact as to whether the cow was unhealthy and unsound when the sale was made and warranty given. With this testimony out of the case, the jury would have been warranted in finding that the cow was healthy and sound when sold. Its admission was error, and the exceptions to the ruling and to the refusal of the court to grant a motion for a new trial based upon the newly-discovered evidence present reversible error.
The judgment and orders should be reversed and a new trial ordered, costs to abide the event.
WOODWARD, JENKS and CARR, JJ., concurred; HIRSCHBERG, P.J., concurred in result.
Judgment and order of the County Court of Nassau county reversed and new trial ordered, costs to abide the event.