THIRD DEPARTMENT, JUNE, 1904. [Vol. 96. interest unpaid upon that mortgage and for a store bill, Dickson gave to defendant, upon the 5th day of February, 1900, a chattel mortgage, covering the property in dispute to secure the payment of $600 and odd dollars, with interest. This mortgage was never filed, and upon the 27th day of August, 1900, this mortgage was surrendered and a note taken from Dickson for the same sum, together with interest, and a new chattel mortgage upon the same property. This second mortgage was not filed, and upon the 8th day of November, 1900, Dickson gave to Oliver a bill of sale in consideration, as it is recited, of $700. This $700 consisted of the indebtedness owing by Dickson to Oliver and of about $27 paid at the time by Oliver upon the order of Dickson, and $6 and some cents paid in cash by Oliver to Dickson. This bill of sale was drawn upon the ninth day of November. This was on Friday. It was agreed that upon the Monday following, or the twelfth of November, Oliver should go to the farm of Dickson and take possession of the property. Upon that date the defendant Oliver went to the farm of Dickson, was shown the property, put his hands upon some of it, and assumed to take possession. Then he delivered up the old chattel mortgage and note which he had taken the August preceding, and executed and gave to Dickson a lease of this same property for a year for the sum of $42, with the provision in said lease that "if said Dickson shall at any time before November 12, 1901, pay said Oliver the amount of said purchase price of said property and interest, then said Oliver agrees to sell the same to him for that sum and deliver what remains of the property upon payment thereof." There is some dispute as to whether this lease was agreed upon prior to the time of the execution of the bill of sale upon November ninth. That bill of sale was executed at night in the office of Mr. Johnson at Andes. Mr. Dickson swears that before the execution of the bill of sale it was agreed that the property should be leased back with a right of repurchase. Upon that question Mr. Oliver swears that "it was talked before that we might make some arrangement by which I could lease it to him. I say the lease was not drawn that night. It was arranged that night, the terms of it, after the bill of sale was drawn. I think the * * * terms of the lease were sort of agreed upon that night, and the lease was drawn on the following day and taken up to the farm. The App. Div.] THIRD DEPARTMENT, JUNE, 1904. arrangement was made that night that he should remain in possession of the property and should take a lease of it for a year for $42 After the bill of sale was drawn we discussed the lease and that he could pay up the amount he was owing me at any time during the year and have the property. That is my recollection of the arrangement that was made that night, and we discussed the arrangement of the lease as to what we should have in it. The bill of sale was drawn on the night of the 9th and delivered to me." At the close of the evidence the trial court submitted to the jury two questions: First, whether the bill of sale and the lease were intended as a chattel mortgage; that is, merely as security; secondly, whether the transfer, not having been accompanied by an immediate and continued change of possession, was fraudulent as to creditors. The jury found in favor of the defendant upon both questions. From the judgment entered upon the verdict and from the order denying the motion for a new trial this appeal is taken. E. D. Wagner and G. A. Fisher, for the appellant. Barna Johnson [C. L. Andrus with him on the brief], for the respondent. SMITH, J.: The inference is to my mind irresistible that these papers were executed simply to give security to Oliver for the moneys owing. That in legal effect constituted a chattel mortgage which was void Although the bill of sale as against the plaintiff because not filed. was signed and delivered upon November ninth the mortgage and note, which were to be replaced thereby, were not surrendered until the twelfth, at which time the defendant assumed to take possession of the property and upon which date this lease was executed. The bill of sale, therefore, and the lease must be construed together to determine the legal effect of the transaction. These papers were but a substitute for a note and chattel mortgage already held by defendant, which chattel mortgage Dickson had requested should not be filed. Dickson retained actual possession. All of the property purchased was leased by Oliver to Dickson for $42, the exact amount of the legal interest upon the $700 owing by Dickson to Oliver. The right of repurchase was there THIRD DEPARTMENT, JUNE, 1904. [Vol. 96. given which would seem to preclude any right in Oliver to sell the same until the time for the repurchase had elapsed. The rental value of the property leased was much in excess, as appears by the evidence, of the $42, and much of the property leased was property from which Dickson could obtain no profit by leasing and which would be to him simply an expense, as for instance the young stock he was required to feed. This inference is not only reached from the testimony of Oliver in connection with the construction of the papers executed, but would follow logically the testimony of Johnson, Oliver's attorney, as to what transpired at the time of the execution of the so-called bill of sale. All of the evidence seems to point unerringly to the conclusion that Oliver was simply taking a security which he thought would not have to be filed. In Susman v. Whyard (149 N. Y. 127) the head note reads: "When the provisions of an instrument, which is in form an absolute bill of sale, taken in connection with the surrounding facts, indicate that the parties contemplated a loan of money and a sale of the property upon the condition, however, that the property should be returned upon payment of the money so loaned, the instrument is in effect a chattel mortgage; and the fact that it employs the term 'resale' will not change its meaning when no other sum than the amount of the loan is mentioned or contemplated as the price of such resale." It is very evident that if papers such as were here executed can have the effect claimed for them they constitute a lawful substitute for a chattel mortgage without the necessity of filing the same, and the provision of law as to the filing of a chattel mortgage may thus be evaded. That provision of law is a salutary one made for the protection of creditors as against secret liens. The courts should not be astute to find ways of rendering nugatory a salutary provision of law for the protection of innocent creditors. We are of opinion, therefore, that the trial court erred in submitting this as a question of fact to the jury and should have held as matter of law that these papers did in effect constitute a chattel mortgage which was void as against the plaintiff. The respondent insists that the appellant is not entitled to raise this question on appeal because no motion for a directed verdict was made at the trial, and no exception was taken to the charge of the court submitting the question to the jury. That the appellant may raise App. Div.] THIRD DEPARTMENT, JUNE, 1904. the question here without having moved for a directed verdict at the trial has been established in this department in the case of McGrath v. Home Insurance Co. (88 App. Div. 153). All concurred, except PARKER, P. J., and HOUGHTON, J. dissenting. Judgment and order reversed and new trial granted, with costs to appellant to abide event. JENNIE HIGGINS, Respondent, v. UNITED TRACTION COMPANY, Appellant. Negligence-a question whether an injury, described, would “be likely to produce" a certain condition is inadmissible. Upon the trial of an action to recover damages for personal injuries it is improper to allow a witness sworn on behalf of the plaintiff to be asked by the plaintiff's attorney, "Would an injury such as she received upon that day be likely to produce the condition which I have related to you?" as the term "likely" does not imply the necessary degree of probability or certainty to make the question admissible. PARKER, P. J., dissented. APPEAL by the defendant, the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 19th day of January, 1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk's office on the 20th day of January, 1904, denying the defendant's motion for a new trial made upon the minutes. The plaintiff has sued the defendant for damages for negligence. Her claim is that in alighting from one of the defendant's cars the car started up before she had left the same, thereby throwing her to the ground and injuring her. The jury rendered a verdict in her favor for $1,000. From the judgment entered upon this verdict and from an order denying defendant's motion for a new trial this appeal is taken. Patrick C. Dugan, for the appellant. Thomas F. Powers, for the respondent. SMITH, J.: THIRD DEPARTMENT, JUNE, 1904. [Vol. 96. Upon the trial of this action one Morris, a physician, was called in behalf of the plaintiff. In a hypothetical question, which assumed as true certain facts claimed to have been proven by the plaintiff, he was asked: "What would you say produced the condition in which you found this woman upon your examination?" To this he answered: "An injury could produce that condition." Thereupon the witness was asked by plaintiff's attorney: "Would an injury such as she received upon that day be likely to produce the condition which I have related to you?" This was objected to by defendant's counsel as speculative, incompetent, inadmissible and not based upon a reasonable certainty, or upon the facts proven. The objection was overruled, the defendant excepted, and the witness answered: "I say yes, it would." In Strohm v. N. Y., L. E. & W. R. R. Co. (96 N. Y. 305) RAPALLO, J., in writing for the court, says: "Consequences which are contingent, speculative, or merely possible, are not proper to be considered in ascertaining the damages. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely to so develop. To entitle a plaintiff to recover present damages for apprehended future consequences there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury." In Bellemare v. Third Avenue R. R. Co. (46 App. Div. 557) the head note reads: "In an action to recover damages for personal injuries it is improper to permit a physician who examined the plaintiff some three years and eight months after the accident and found that certain ribs on his left side were fractured, to testify in answer to the question as to whether the injuries would be permanent that 'There is likely to be a certain loss of strength of the affected side, but the principal danger lies in the complications that may result from chronic pleurisy, which exists in this man's case,' and that such complication 'is liable to occur; it may and may not,' as such testimony is conjectural and speculative, there being no reasonable certainty that the anticipated consequences will result." In that case the Strohm case was referred to and relied upon, the court holding that it is not proper to testify as to consequences which are likely to develop. While the term |