
    The Patterson Gas Governor Company v. Glenby.
    (New York Common Pleas
    General Term,
    August. 1893.)
    Defendant purchased of plaintiff a gas governor and agreed to pay therefor upon the express condition that it demonstrated, after sixty days’ fair trial, a saving of from fifteen to forty per cent in the consumption of gas. Held, that the burden of proving performance of the condition rested upon plaintiff, and failing to sustain it by sufficient evidence, no cause of action against defendant was established.
    A witness for plaintiff was asked upon his direct examination to state from his examination of the meter what saving was made by the use of plaintiff’s apparatus, to which he replied, over thirty per cent. Held, that the answer substituted witness’ conclusion for the facts upon which it was founded and should have been strickén out on defendant’s motion. Also held, that the failure to object to the question did not render the answer competent, as the objectionable answer could not have been reasonably apprehended from the question addressed to the witness.
    Appeal from a judgment for plaintiff recovered in a District Court in the city of New York.
    Action to recover the purchase price of a gas governor.
    
      
      P. C. Taiman, for plaintiff (respondent).
    
      A. FL. Sanasohn, for defendant (appellant).
   Bischoee, J.

Defendant’s promise to pay was made upon the express condition that the gas governor would demonstrate, after sixty days’ fair trial, a saving of from fifteen to forty per cent in the consumption of gas. The burden of proving performance of the condition rested upon plaintiff and, failing to sustain it by sufficient evidence, no cause of action against defendant was established. Attentive consideration of the evidence as it was finally submitted to the justice below, fails to justify the conclusion that plaintiff did sustain the burden by fair preponderance of the evidence. So, also, Patterson, a witness for plaintiff, was asked upon his direct examination to state from his examination of the meter what saving was made by the use of plaintiff’s apparatus, to which he replied that it effected a saving of over thirty per cent.

On motion of defendant’s counsel the court refused to strike the answer out, and the exception to this ruling presents error, for which the judgment must be reversed. The answer was objectionable in that it substituted the witness’ conclusion for the facts upon which it was founded. Whether or not a saving of gas was effected by the use of plaintiff’s apparatus, was the question at issue, and this could only be properly determined by the court. Nor could the objectionable answer have been reasonably apprehended from the question addressed to the witness. Hence the failure to object to the question did not render the answer competent. Platner v. Platner, 78 N. Y. 90, 102; Farmers' Bank of Washington Co. v. Cowan, 2 Abb. Ct. App. Dec. 88.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Giegebich, J., concurs.

Judgment reversed and new trial ordered.  