
    Logan Iron Works, Respondent, v. Leontine Klein, etc., Appellant.
    Second Department,
    April 23, 1909.
    Evidence — counterclaim for moneys expended in completing contract — acts done by defendant — transactions between agents.
    Where a defendant sued for the agreed price of a chimney erected by the plaintiff, counterclaims for moneys expended by him to put the chimney in the condition required by the contract, it is error to exclude evidence that the defendant increased the height of the chimney.
    So, too, it is error to refuse to allow the defendant’s agent to testify to conversations with the plaintiff and his agent upon matters relevant to questions in issue.
    The appellate court cannot assume that the answers to a proper question would have elicited an answer which would be inadmissible.
    Appeal by the defendant, Leontine Klein, etc., from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 29th day of June, 1908.
    
      Edward Fillmore, for the appellant.
    
      John M. Zurn, for the respondent.
   Miller, J. :

The plaintiff agreed to sell and deliver to the defendant a boiler . for the sum of $1,235, to set it in brick work for the sum of $539, and to erect a chimney suitable for the boiler for the sum of $674. The sum of $2,000 has been paid, and this snit is brought to recover the balance.

The only disputed question of fact was whether the chimney constructed by the plaintiff was suitable, the evidence of the defendant tending to show that it needed to be thirty feet higher to produce the requisite draft. The defendant did not rely upon non-performance as a defense, but pleaded as a counterclaim and set-off that she had been compelled to expend the sum of $610 to put the chimney in the condition required by the contract.

At the close of the evidence the Municipal Court justice dismissed the counterclaim; and it must be admitted that the defendant’s counsel had wholly failed to elicit from the witnesses the testimony necessary to present a question of fact on that issue; but that was due to two things — the unscientific questions asked and the erroneous rulings of the justice. While many, and perhaps most, of the questions were objectionable, the objections to some were improperly sustained. For instance, the defendant was not permitted to testify that she extended the chimney; and we must assume that, had that been allowed, it would have been followed by evidence to show what was done and the reasonable cost of it. The defendant’s husband, who acted as her agent, was not allowed to testify to conversations with the plaintiff and its agent which were plainly relevant to the question in issue. It may be that, if the counsel had not been embarrassed by the erroneous rulings referred to, he would still have been unable to elicit testimony tending to establish the counterclaim; but we cannot assume that, and hence the judgment must be reversed.

Hirschberg, P. J., Gaynor, Burr and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  