
    BENTLY v. ARD.
    (Erie County Court.
    November 14, 1910.)
    1. Justices of the Peace (§ 183)—Appeal —Replevin—Harmless Error-
    Failure to Find Value of Chattels.
    On appeal írom a justice of the peace to the County Court in replevin for cows, plaintiff could not complain that he was injured because the value of the cows had not been found, in view of his retaining possession of them on his giving the required bond.
    [Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 711, 712; Dec. Dig. § 183.*]
    2. Evidence (§ 317*)—Hearsay—Admissibility.
    In replevin for cows, evidence that the party who sold the cows to plaintiff remarked before making the sale that they belonged to defendant was inadmissible as hearsay..
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1178; Dec. Dig. § 317.*]
    3. Evidence (§ 231*)—Admissions of Seller—Declarations Against Inter-
    est as Binding on Buyer.
    Declarations of the seller of chattels as to the title thereto made before a sale and while he was the owner is riot admissible against the buyer, unless there be some community of interest.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 835-839, 852-859; Dec. Dig. § 231.*]
    Appeal from Justice Court.
    Replevin by Morris Bentley against Amanda Ard. Judgment in a Justice’s Court for defendant, and plaintiff appeals.
    Reversed.
    
      John Knight, for appellant.
    Wallace Thayer, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Bep’r Indexes
    
   TAYLOR, J.

This is an appeal from a judgment of a justice of the peace in favor of the defendant, entered upon the verdict of a jury, awarding her possession of certain cows in an action of replevin. The appellant on this appeal raises three points as grounds for reversal, as follows: (1) That there is no evidence to sustain the verdict. (2) That erroneous rulings were made in the admission of testimony. (3) That the verdict is not in accord with the Code of Civil Procedure, under the circumstances, as to its form, in that it does not find the value of the personal property in question.

I find against the appellant as to the first assignment of error. As to No. 3, inasmuch as the chattels were put into the plaintiff’s possession upon his giving the undertaking required by the Code, he cannot complain that he has suffered any injury on account of the value of the chattels not having been found.

Assignment of error No. 2 is of more importance. The appellant claims that the admission in testimony of declarations of George Ard as to the ownership of the chattels in question while he was in possession thereof, claiming ownership, were improperly admitted in evidence, and that that testimony was distinctly damaging to appellant. With this contention I agree. Several witnesses were allowed to testify as to remarks made by George Ard before he executed the bill of sale to appellant tending to indicate that this defendant was the owner of the cows; and, inasmuch as there was believable testimony both ways as to ownership, I cannot help finding that these declarations were not only hearsay, but may have had great influence in bringing the jury to arrive at the verdict which they did. Counsel for respondent has cited authorities which he claims support his contention that these declarations were admissible in evidence as declarations against interest. I believe it to be the settled rule now in this sta te that declarations of a vendor of chattels as to the title thereto, made before sale, and while he was still claiming to be owner and was in possession of the chattels, are not admissible as against his , vendee unless there be a community of interest or some privity. The rule as to such declarations relating to chattels, dioses in action, and a-lso as to real property is well laid down in Merkle v. Beidleman, 165 N. Y. 21, 58 N. E. 757, and requires a reversal of this judgment for the reasons just stated.

Section 3063 of the Code of Civil Procedure allows me to grant a new trial in such a case provided the verdict is contrary to or against the weight of evidence, which is field to mean so clearly contrary to,' it as to be substantially unsupported by the testimony and not merely ■different from what the Appellate Court might have found if the case bad been originally tried before it. Murtagh v. Dempsey, 85 App. Div. 204, 83 N. Y. Supp. 296. Granting a new trial not being allowed on any other ground, the only disposition I can make of this appeal, under sections 3063 and 3066 of the Code of Civil Procedure, is to reverse the judgment of the court below, with costs.  