
    COBLE, Appellant, v. KESSELGRAU, Respondent.
    (Supreme Court, Appellate Term.
    July 6, 1900.)
    Action by Robert Coble against David ICesselgrau. From a judgment in favor of the defendant, plaintiff appeals. Reversed. Louis S. Finn, for appellant. Leopold W. Harburger, for respondent.
   PER CURIAB1.

As it does not appear that the plaintiff knew what evidence the defendant would give in the replevin action, it cannot be said that it was incumbent upon him to call defendant as a witness in that action. Particularly is this so in view of the fact that the defendant had notice of the action, and could have presented himself for examination as a witness if he chose to do so. Attention is called to the fact that there was no evidence that the payment for counsel fee was a reasonable charge for a necessary expenditure. The judgment should have been in favor of the plaintiff. Judgment reversed, and new trial granted, with costs to appellant to abide the event.  