
    Robert Coble, Appellant, v. David Kesselgrau, Respondent.
    Appeal from a judgment of the Municipal Court of the city of New York, fourth district, borough of Manhattan.
    Louis S. Finn, for appellant.
    Leopold W. Harburger, for respondent.
   Per Curiam.

As it does not appear that the plaintiff knew what evidence the defendant would give in the replevin action, it cannot be said that it was incumbent upon him to call defendant as a witness in that action. Particularly is this so, in view of the fact that the defendant had notice of the action, and could have presented himself for examination as a witness, if he chose to do so.

Attention is called to the fact that there was no evidence that the payment for counsel fee was a reasonable charge for a necessary expenditure.

The judgment should have been in favor of the plaintiff.

Present: Truax, P. J., Scott and Dugro, JJ.

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