#### Solomon Salvinsky et al., Respondents, *v.*Marks Levin, Appellant.

(Supreme Court, Appellate Term,

May, 1899.)

Evidence — Wlien its improper exclusion will not be disregarded.

Tbe erroneous exclusion of evidence will be disregarded on appeal where opportunity for its admission has been accorded and it does not appear that in the meantime any disadvantage has resulted to the excepting party from the ruling, but an exception will not be deemed to have been abandoned where the attempt of the excepting party to avail himself of the opportunity has been set at naught by the continued adverse ruling of the court.

Salvinsky v. Levin, 26 Misc. Rep. 856, reversed.

Appeal from a determination of the General Term of the City Court, affirming a judgment of the Trial Term, rendered on the verdict of a jury in favor of the plaintiffs.'

Henry M. Levin, for appellant.

Abraham Levy,.for respondents.

Leventritt, J.

Under a written agreement the plaintiffs deposited with the defendant the sum of $500 “ as security for the completion of the work to he done on premises 195 Allen St.” The defendant challenged the plaintiffs’ right to a return of the deposit, on the ground that the'Work had not been'performed according to the understanding between them. On the trial the defendant sought to show that the work was to be performed in .accordance with certain submitted and approved plans. To that end defendant’s counsel propounded to him this question: “Were .there any plans submitted to you for these alterations? ” The ánswer was excluded and an exception duly taken. Other evidence tending in the same direction was similarly excluded With a like purpose in view the defendant called an architect who had prepared preliminary plans for the proposed improvements, but a similar ruling precluded an answer to the question whether a' certain sketch had been submitted to defendant as a sketch of the work to be done.

*522This testimony,, admissible under the. pleadings, was the only' reliable foundation to support the defense of nonperformance, and was-both material and competent. It cannot be .argued that ,the several announcements, of the court to the effect that the defendant would be permitted to show the contract made between the parties, and that the work was not done according to it, impaired the force of any of the defendant’s exceptions, because his repeated attempts to introduce the excluded testimony were frustrated by like adverse rulings. The court seemed to recognize that the proffered evidence was- within the purview of the announcement and yet excluded it. While it is true that the erroneous exclusion of evidence will be' disregarded on appeal when-opportunity for its admission has been, accorded,» and it does not appear that in the meantime any disadvantage resulted to the- excepting party from the ruling (Dearing v. Pearson, 8 Misc. Rep. 269), yet an exception will-not-be deemed .-abandoned where the attempt of-the excepting party to avail himself of the opportunity has been set at naught by. the continued adverse ruling of the court. Such an opportunity is one in name only, not one in fact. ' • "

These errors require a reversal of the judgment.

Ereedman, P. J„ and MacLean, J., concur.

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