
    Abel S. Myers, Resp’t, v. James Y. Parker et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    1. Trespass—Animals.
    In an action for trespass by defendant’s cattle in plaintiff’s garden and oat field, an agreement on plaintiff’s part to pasture such cattle is no defense, unless they strayed there through his fault.
    
      2. Evidence—Opinion.
    In an action for trespass by cattle, it is incompetent for defendant to testify that he considered his cattle in plaintiff’s care so long as he rented pasture from him, and, for that reason, he claimed that the cattle did not commit any trespass.
    
      Wilton Bennett, for app’lts; Ohas. S. Stage, for resp’t.
   Putnam, J.

This action was commenced in a justice’s court and on a verdict of a jury judgment rendered in favor of defendant for costs. The county court of Sullivan county reversed such judgment and defendant appeals to this court. The complaint stated a cause of action for trespasses of defendant’s cattle on premises of plaintiff. The alleged trespasses were clearly shown by testimony produced by plaintiff, which was not contradicted. The defendant undertook to show that plaintiff at the time of the alleged trespasses was under an agreement to pasture defendants’ said cattle, but no attempt was made to show a contract to so pasture them in plaintiff’s garden or oat field, where the alleged trespasses were committed. Plaintiff’s agreement to-pasture the cattle was no defense unless shown to be one to pasture them in plaintiff’s garden or oat field, or unless it appeared that the cattle strayed to those places through some fault of plaintiff. No such proof was produced by the defendants. On the evidence we think plaintiff was entitled to judgment.

Again, on the trial the following questions were asked defendant Parker as a witness, and he was allowed to give the following answers, viz.: “ Q. Did you consider your cows in plaintiff’s care so long as you rented pasture from him ? Objected as improper and immaterial and not within the issues raised by the answer. Objection overruled. A. Yes, sir. Q. And for that reason you say that these cattle did not commit any trespass on plaintiff’s, lands? Same objection. Same ruling. A. Yes, sir.” We think that this evidence was improperly received. The objections thereto of plaintiff should have been sustained. This evidence may have affected the verdict of the jury.

Our conclusion is that the judgment of the county court should be affirmed with costs.

All concur.  