SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
December 4, 1969
AL MERZKE, DOING BUSINESS AS AL'S BODY SHOP, RESPONDENT,
CHARLES KOHLMETZ, APPELLANT
Appeal from judgment of Monroe County Court in action to recover payment for labor and materials.
Goldman, P. J., Marsh, Witmer, Gabrielli and Henry, JJ.
Memorandum: The trial court erred in receiving into evidence the two newspaper articles. The author and editor of the principal article, however, testified concerning the statements of fact therein set forth; and in view of the testimony by all the witnesses that the automobile was rusty when taken to plaintiff for restoration, and the statement by plaintiff that although when the automobile was brought to him it was in bad shape, it was not a pile of junk and was certainly restorable, we find that the receipt of the two articles was not such substantial error and so prejudicial to defendant as to merit reversal and a new trial.
Judgment unanimously affirmed, without costs.
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