
    Louis C. Snitten, Appellant, v. John Brown et al., Respondents.
    (Supreme Court, Appellate Term,
    February, 1907.)
    Negligence — Actions — Evidence — Admissibility.
    In an action brought to recover for injuries sustained by the fall of a beam, in a pile of lumber near the sidewalk, a short distance from where defendants were erecting a building, where the ownership of the lumber was in question, it was error to exclude the question, asked one of the defendants by the plaintiff: “Now what did you do with ” the pile of lumber in question?
    MacLean, J., dissented.
    Appeal by the plaintiff from a judgment dismissing his complaint .rendered in the Municipal Court of the city of ¡New York, borough of Manhattan.
    Lamb & Petty, for appellant.
    Nadal, Carrere & Jones, for respondents.
   Per Curiam.

The plaintiff appeals from a judgment dismissing his complaint at the close of his case. He sued for alleged injuries to his son aged twelve years, who was playing in the street near his home. The defendants Brown and Lapin were building on East One Hundred and Eorty-fifth street, west of St. Ann’s avenue, and the other defendants were dealers in lumber and furnishing same to the defendants Brown and Lapin. The complaint was dismissed as to all of the defendants, but this appeal is taken only as to the defendants Brown and Lapin. The boy broke his leg by the fall of a beam extending from a pile in the street near the sidewalk, and this pile was in front of ¡No. 816 East One Hundred and Eorty-fifth street and some distance away from the defendants’ buildings. The plaintiff’s proof showed that the lumber piles reached along from the defendants’ property to ¡No. 816 East One Hundred and Eorty-fifth street. The defendants claiméd that there was no proof that the lumber belonged to them. The accident occurred in the evening of January 26, 1906, and there was proof that there were no lights on the lumber. The complaint was dismissed on the ground that there was no proof of any negligence on the part of the defendants Brown and Lapin. It was material for the plaintiff to prove the ownership of the lumber by which the boy was injured. The defendant Brown was called as a witness by the plaintiff and, after telling that the night watchman had pointed out to him the lumber in dispute, he was asked: “ Q. Fow what did you do with that lumber that the watchman pointed out to yon which he said was where the accident happened? Objected to as immaterial, irrelevant and incompetent.” The plaintiff’s attorney stated that he wished to show that the defendant used it and thus prove ownership. The question was, however, excluded, and the plaintiff excepted. The question should have been allowed. Had the defendant answered to the effect that the lumber was used in constructing the buildings, it would have been some evidence tending to establish ownership.

Gildebsleeve and Amend, JJ., concur; MacLean, J., dissents.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  