Jaeckel v. David

The issue of fact was directed to the plaintiffs’ performance of their agreement to make a fur garment for the defendant according to the style ordered by her, and this appeal is founded upon asserted errors in rulings upon evidence in two instances.

Plaintiffs’ witness Smith, on re-direct examination, identified a garment as representing the style or model which was shown to the defendant when she gave her order, and upon his being asked “ What was the number of the style she selected from ” the question was excluded as immaterial and irrelevant. This testimony was offered in rebuttal, evidence having been given by the defendant that the model from which she gave her order differed from the garment delivered by the plaintiffs, and it did not appear distinctly whether the “ model,” thus stated to have been used as the basis of the order, was a complete garment or a fashion plate, which last she testified had been shown her. It is claimed for the appellants that the purpose of the question as to the style number, was to identify a fashion plate as the “ model ” from which the order was given, but this purpose was not suggested by the form of the question nor disclosed at the trial, and since the plaintiffs’ apparent proof was that the garment itself was the “model,” testimony as to the number of a picture of the same model was immaterial, in the absence of some explanation by counsel as to the object of the offer.

The remaining point had to do with questions asked this same witness, on cross-examination, based upon models of other furriers.

The objections were taken, however, after the questions were asked, without a motion to strike out, and, in any event, since the answers were within the scope of the questions, the objection was addressed simply to the discretion of the court below. More*792over, the questions were not incompetent and were stated by the court to bear only on the qualifications of the witness as an expert. For this purpose the inquiry was relevant, and we must assume that the appellants’ counsel was not apprehensive of the jury’s misunderstanding the restriction, for he requested no instructions to them upon the subject. The judgment should be-affirmed, with costs.

Leventbitt and Claree, JJ., concur.

Judgment affirmed, with costs.