Machen v. Lamar Ins. Co. plaintiff's building and personal property. The policy was for $1500. There was a concurrent policy issued by the Manufacturers' Insurance Company upon the same building and property for a like amount. Part of the building covered by the policy was used as a wagon shop and part as a cider mill. The machinery and tools in the building were included in the policy. The cause and all the issues therein were referred to a referee. There was much conflict of evidence as to the value of the building and the machinery and tools, the witnesses for the plaintiff and for the defendant differing widely in their estimates of value. The referee found the total loss to be $2,360, and charged one-half to the defendant. On the trial the plaintiff called, among other witnesses, one Herrick, a manufacturer of iron machinery, who a few weeks before the trial had visited the plaintiff's place and examined the ruins. He saw some iron screws and shafting which had been burned and damaged, but not destroyed. He made no inventory. Several months before this visit this witness made an estimate in writing of the cost of replacing all the machinery claimed to have been in the building. This estimate was made by the witness without any personal knowledge of the machinery or whether the articles included therein were ever in the building. The plaintiff described the machinery to him and his estimate was made from such description. He was then asked to state the amount of his estimate. This question was objected to as incompetent, immaterial and irrelevant; not based upon the knowledge of the witness, and as not calling for the true measure of damages. The objection was overruled, to which ruling the defendant excepted. The witness then answered, "Footings of estimate, $430.” Machen v. Lamar Ins. Co. The written estimate made by this witness containing a detailed list of many articles, with their size, general description and cost of each, was then offered and received in evidence, under a similar objection. From this estimate and from the evidence of the witness it appears that much of the machinery estimated for was woodwork. The iron screws were not included in the estimate, but the iron shafting was. The shafting, the witness says he saw, was a little bent, but when straightened would be as good as new; this he said could be done at the nominal cost of a few dollars; but the witness' estimate included the cost of new shafting, in place of that which was only damaged, as well as the cost of new woodwork, which was entirely consumed by the fire. Among the articles mentioned in the estimate was a "boring machine," value placed at $50. The witness said that a "boring machine" might cost from $5 to $500. The plaintiff, although examined as a witness, was not asked whether he correctly described to Herrick the articles included in the latter's estimate, nor did he testify that the machinery included in such estimate, with the exception of two or three articles, was in the building at the time of the fire. The witness Ingoldsby testified that a portion of the articles, which he names, were in the building two years before the fire. This is the only evidence in the case showing, or tending to show, that the articles contained in Herrick's estimate were in the building at the time of the fire. There is no evidence showing that all the articles estimated for by the witness were in the building. We think this evidence was improperly admitted. No sufficient foundation had been laid to justify the admission of this evidence. It was material, for it bore directly upon one of the main issues of fact in the case. But, in the absence of evidence proving that such articles as were included Rinelander v. Dunham. in the estimate were in the building at the time of the fire, the evidence was incompetent. For this error, a new trial must be granted. Section 1003, of the Code of Civil Procedure, has no application to exceptions taken upon the trial of a common law action. It applies only to cases in equity where issues have been framed to enable the court to have the aid of a jury in determining the facts. The rule of law applicable to the granting of new trials by appellate courts for errors committed in the admission or rejection of evidence upon the trial of actions at common law has not been changed by this section of the Code. As this leads to a reversal, it is unnecessary to consider and determine the other questions discussed upon the argument. All concur, except RAPALLO, J., absent. RINELANDER ET AL., RESPONDENTS v. DUNHAM. APPELLANT. N. Y. MARINE COURT; GENERAL TERM, JUNE, 1882. $ 2269. Supplementary Proceedings.- Contempt.-Affidavit On a motion to punish a defendant for contempt in failing to appear before a referee, as required by an order in proceedings supplementary to execution, the certificate of the referee certifying to such default is not legal evidence of it. An affidavit proving the facts charged is necessary. Appeal from an order adjudging the defendant in contempt, and imposing a fine of $550. An order having been granted requiring the de Rinelander v. Dunham. fendant, a judgment debtor, to appear before a referee therein named, and submit to an examination in proceedings supplementary to execution, and she having failed to do so, the plaintiff moved upon such order, the affidavit on which it was granted, proof of service thereof and a certificate of the referee certifying to such default to punish the defendant for contempt. This motion was granted by Hon. G. P. Hawes, and an order entered requiring the defendant to pay a fine of $550 to the plaintiffs or their attorney, and that she stand committed to the common jail of the county of New York until she pay such fine, &c. From this order the defendant appealed. Allen McDonald, for appellant. John M. Bowers (W. R. Stewart, Attorney), for respondents. MCADAM, J.-The only evidence tending to show that the defendant failed to appear before the referee, named in the order for her examination is contained in the certificate of the referee certifying to such de-. fault. The statute does not make the referee's certi ficate legal evidence of such default. An affidavit proving the facts charged is necessary. (Ackroyd v. Ackroyd, 3 Daly, 38; Code of Civ. Pro. sec. 2269.) For this defect in the proofs the motion to punish for contempt ought to have been denied, with leave to renew. It follows therefore, that the order appealed from must be reversed with $10 costs, and the expense of printing; on payment of which the plaintiffs will be permitted to renew their application, on legal proofs. SHEA, C. J., and NEHRBAS, J., concur. VOL. II.-3 Wilson v. Bennett. WILSON APPELLANT, 0. BENNETT, RESPONDENT. SUPREME COURT, FIRST DEPARTMENT; GENERAL TERM, MAY, 1882. S$ 523, 528. Libel.-Answer to verified complaint.—Laches. It is not necessary to verify the answer in an action for libel, even though the complaint be verified. The omission to verify a pleading, where necessary, is an irregularity which may be waived, and the right to take advantage of it is lost by long delay. Appeal from an order denying plaintiff's motion for judgment. The facts are stated in the opinion. Eugene B. Travers, for appellant. John Townshend, for respondent. BRADY, J.-This is an action for libel; the complaint was verified. The answer was served on or about the 21st of February, 1880, and contained a general denial, but was not verified. The plaintiff's counsel assuming that the answer should have been verified, and guided by section 528 of the Code of Civil Procedure authorizing the party to treat an unverified pleading as a nullity, wrote the defendant's attorney, on the 21st of February, 1880, a letter. calling his attention to the fact that the answer was not verified, and stating that if it was an oversight it might be corrected; otherwise it would be treated as a nullity. On or about the 7th of February, 1882, no verification or amendment of the answer having been made, the plaintiff's attorney gave notice of a |