
    The G. E. Walter Company, Respondent, v. Edson Bradley, Appellant.
    (Supreme Court, Appellate Term,
    June, 1909.)
    Examination of witnesses — Cross-examination — Latitude.
    Where the pendency of an action to recover damages for breach of contract and negligence in injuring certain models intrusted to plaintiff to enable it to make replicae of them pursuant to an agreement between the parties is pleaded by the defendant as a bar to an action to recover the contract price for making the replicae, the defendant is entitled nevertheless to cross-examine the plaintiff’s witness as to the plaintiff’s performance of the contract and its discharge of its duty as' bailee of the models.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff by direction of the court, and also from an order denying a motion for a new trial.
    P. Lewis Anderson (Edward A. Alexander, of counsel), for appellant.
    Walter Carroll Low, for respondent.
   MacLean, J.

In the amended complaint, verified February-21, 1908, were alleged the incorporation of the company and its continued existence as such; that it undertook, under agreement expressed in interchanged letters, dated July 2 and 3, 1906, respectively, to make replicae from and of certain models furnished hy and belonging to the defendant for $415; that it performed the work and returned the models. Mr. Walter testified for his namesake company that it was in dissolution, and, on his cross, without objection, that it' was dissolved in April, 1908, that is, before issue was joined hy the service of the answer verified June nineteenth. Tinder the complaint, put in issue by a general denial in the answer, proof was requisite of plaintiff’s proper performance in a workmanlike manner, at least substantial performance, of its undertaking and due discharge of its duty as bailee of the models. Both were asserted hy Walter; but searching of his assertions on cross-examination was cut off by the learned trial justice who, upon the introduction of the pleadings of an action in the Supreme Court, regarded as a bar the pendency of another action pending, (1) for damages because of alleged breaches on the part of the Walter Company in damaging the ceilings and parts of the panels intrusted to it, and (2) for damages because of the careless, unworkmanlike and unskillful manner in which the plaintiff performed its work and destroyed or permanently injured the models intrusted to it, and held that the only question remaining was the acceptance by the defendant of the work and material. This was. reversible error since, despite the other action pending, the defendant was entitled to probe the proof offered against him and to disprove any fact necessary to he established by the plaintiff to authorize a recovery on its part.

Gtldersleeve and Seabtjry, JJ., concur.

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