
    Benjamin Wasserman, Appellant, v. Martin Rubin, Respondent.
    (Supreme Court, Appellate Term,
    May, 1910.)
    Evidence ■—Relevancy — In general — Defendant’s financial condition as bearing on probability of Ms borrowing money.
    Where, in an action to recover money loaned, tried by the court without a jury, near the close of the trial in which the evidence could hardly be said to have preponderated for either party, the trial judge brought out that defendant was the owner of property, had money deposited in bank, was the employer of several people, an officer of a corporation, etc., to show that defendant did not need to borrow money, a denial of a motion to strike out said testimony as incompetent, irrelevant and immaterial is error for which a judgment for the defendant should be reversed.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.
    David Robson, for appellant.
    Martin Rubin, for respondent.
   Bijur, J.

Plaintiff sues for seventy dollars, money loaned to defendant. Near the close of the trial, in which the evidence can hardly be said to have preponderated for either party, the court (there being no jury) interrogated defendant and brought out that he was the owner of property, had money - deposited in bank, was an employer of - several people, an officer of a corporation, etc.; all evidently intended to show that defendant did not need to borrow money. The court denied the motion of the plaintiff to strike out this evidence as incompetent, irrelevant and immaterial. The denial was error; and, as the court asked the questions, it is fair to assume that the testimony must have influenced the decision.

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

Seabury and Guy, JJ., concur.

Judgment reversed and new trial ordered.  