The evidence as to the sale of the patterns from Lieberman to the plaintiff is satisfactorily established, being, testified to by both of the parties to it. What consideration was given is wholly immaterial. The evidence of any indebtedness from Lieberman to Levine is most unsatisfactory. It appears that the two had been in partnership, and that there was still outstanding. a small sum due to the copartnership: It does not appear that Lieberman had assumed the loss that might arise by reason of these debts, or that there was anything due from him to Levine .for which the latter had any right to hold the patterns as security. The justice seems to have based his decision upon the judgment in a former action between Lieberman and Levine, the evidence in which he has attached to the return in this action. This judgment had not been put in evidence, and the justice had no right to consider it upon the motion to dismiss the complaint. The justice was also in error in saying that there was no evidence as to the value of the patterns. The plaintiff had given such evidence, without objection as to his qualification to testify upon the subject.
The judgment should be reversed, with costs to appellant to abide the event, and a new trial granted.
Present: Truax, P. J., Scott and Dugro, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.