
    The Patterson Gas Governor Co., Resp’t, v. Saul Glenby, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed August 9, 1893.)
    
    1. Sale—Conditional—Burden of proof.
    In an action to recover the purchase price of a gas governor sold upon express condition that it would demonstrate a saving of a certain percentage of gas, the burden of proving performance of the condition rests upon the plaintiff.
    3. Same—Evidence.
    In such an action a witness testified that the governor effected a saving of over thirty per cent., and the court refused to strike out such testimony. Held, error; that the answer was objectionable in that it substituted the witness’ conclusion for the facts on which it was founded.
    3. Evidence—Objections.
    Where the objectionable answer could not be reasonably apprehended from the question addressed to the witness, a failure to object to the question does not render the answer competent. .
    Appeal from, a judgment for plaintiff recovered in the district court in the city of New York for the eighth judicial district.
    Action to recover the purchase sum which defendant had agreed to pay for the sale to him of one of plaintiff’s gas governors.
    
      P. C. Tallman, for resp’t; A. H. Sarasohn, for app’lt.
   Bischoff, J.

Defendant’s promise to pay was made upon the express condition that the gas governor would demonstrate, after sixty days fair trial, a saving of from fifteen to forty per cent in the consumption of gas. The burden of proving performance of the condition rested upon plaintiff and, failing to sustain it by sufficient evidence, no cause of action against defendant was established. Attentive consideration, of the evidence as it was finally submitted to the justice below fails to justify the conclusion that plaintiff did sustain the burden by fair preponderance of the evidence.

So, also, Patterson, a witness for plaintiff, was asked upon his direct examination to state from his examination of the meter what saving was made by the use of plaintiff’s apparatus, to which he replied that it effected a saving of over thirty per cent. On motion of defendant’s counsel the court refused to strike the answer out, and the exception to this ruling presents error, for which the judgment must be reversed. The answer was objectionable, in that it substituted the witness’ conclusion for the facts upon which it was founded. Whether or not a saving of gas was effected by the use of plaintiff’s apparatus was the question at issue, and this could only be properly determined by the court. Nor could the objectionable answer have been reasonably apprehended from the question addressed to the witness. Hence the failure to object to the question did not render the answer competent. Platner v. Platner, 78 N. Y., 90, 102; Farmers' Bank of Washington Co. v. Cowan, 2 Abb. Ct. App. Dec., 88.

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

Gtegerich, J., concurs.  