Cohen v. Simon

No motion for leave to go to the jury, nor for a new trial upon the minutes was made by the defendants; but they did except to the direction of a verdict against them, and to the various rulings made by the trial term after objection duly raised on questions propounded, and the papers therefore, bring up the right of review, as question of law, upon the exceptions taken by them. Code Civ. Pro., § 996.

The defendants properly pleaded a good defense in fact and law — an adjudication in bankruptcy — and a number of questions to witnesses at the trial, tending to lay a foundation for the introduction of the best evidence to substantiate such defense, were objected to, ruled out and exceptions duly taken. Most of these objections were well made, and we find the papers on appeal *800carry sufficient weight of competent testimony, proffered by the appellants, but ruled out, to justify the assertion of error below. It seems to us that as the appellants were not given an entirely fair opportunity for mating their proofs and completing their right to introduce documentary evidence, they ought to he allowed it by a second trial,- and that they are duly protected by the record made below.

The judgment appealed from should be reversed and a new trial - ordered, with costs to the appellants to abide the event.

-O’Dwyer, J., concurs.

Judgment reversed and new trial ordered, with costs to appellants to abide event.