The defendant was tenant of the plaintiff under a written lease which covered not only the house but also certain mirrors, cornices and gas fixtures. A mirror, included in the lease, was broken under circumstances which would have justified a judgment against the defendant. Certainly its destruction did not result from reasonable use and wear, nor from the action of the elements. The pleadings were written, and the answer, after denying the material allegations of the complaint, sets up, as the sole, affirmative defence, the Statute of Limitations. The destruction of the mirror occurred in December, 1898, when the plaintiff was the unquestioned owner of the house, as well as the mirror. The justice permitted oral evidence to be introduced tending to show that, in February, 1899, the plaintiff had conveyed the house to her daughter, and also permitted questions to be put and answered touching the legal effect of the conveyance, giving as a reason that what the court desired to know was whether the plaintiff was the real party in interest. All this evidence was clearly incompetent and improper. In the first place, there was no allegation in the answer that the plaintiff was not the real party in interest and no such issue was present in the case. In the second place, the legal effect of the conveyance was a matter which should have been determined by the court from the conveyance itself, and not by the examination of a witness; and, in the third place, the whole testimony was immaterial, because a deed of the house would not presumably include the transfer of a claim for damages to personal property in the house. The court also admitted in evidence certain papers in a former action between the parties. This action, however, had never gone to trial, but had been discontinued or dismissed. In any event it was not res adjudicada, and was immaterial. As it is impossible to say that these errors may not have influenced the judgment, it must be reversed and a new trial granted, with costs to the appellant to abide the event.
Present: Tbuax, P. J., Soott and Dggro, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.