Rimes v. Carpenter — 61 Misc. 614

Majority

p. 614

Troy T. Rimes, Respondent, v. N. L. Carpenter et al., Appellants.

(Supreme Court, Appellate Term,

January, 1909.)

Headnote

Evidence — Opinion evidence —Nonexpert evidence — Distinction between direct and opinion evidence and subjects of opinion evidence — Identity — Of parties to conversation by telephone.

Where the issue in an action related to the terms of orders given by plaintiff, a customer, to defendants, his brokers, in a conversation over the telephone between defendants’ agent and plaintiff’s wife speaking by his authority, the testimony of a witness who had listened to the conversation by the use of another telephone at defendants’ place of 'business is competent to show 'that the conversation overheard was the same testified to by plaintiff, where the actual connection between the three instruments is shown in such wise as to identify the conversation and the persons holding it are known.

Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of ISTew York, ninth district, borough of Manhattan.

Miller & Hartcorn (Albert E. Hartcorn, of counsel), for appellants.

Safford A. Crummey, for respondent.

A new trial of this case must be ordered for prejudicial error in the exclusion of evidence offered by the defendants.

The issue related to the terms of orders given by the plaintiff, a customer, to t]*e defendants, bis brokers, in the course of a conversation held over the telephone between the defendants’ agent and the plaintiff’s wife, speaking with bis authority. To corroborate the defendants’ agent, as to what was said, proof was offered in the form of the testimony of a witness who had listened to the conversation by the use of another telephone at the defendants’ place of business, but this evidence, together with any and all proof to identify the plaintiff’s wife as the speaker or to show that

p. 615

the conversation overheard was the same as that to which the plaintiff’s testimony referred, was excluded upon a general ruling announced by the justice to the effect that since the witness heard the conversation upon another instrument in a room other than that in which the defendants’ agent was speaking, the evidence was in its nature incompetent.

Unquestionably a conversation overheard between parties whose voices are recognized by the witness may be proven, and there is no ground for distinction, in principle, between such a case and that of a conversation by telephone, which the witness overhears, where the actual connection between the instruments is shown in such wise as to identify the very conversation, and the persons holding the conversation are known. From the proceedings upon the trial, it appears that the defendants could probably have shown, but were not permitted to show, that three instruments on the same wire, being those used by the principals in the conversation and by the person who overheard it, would serve as a medium of transmission whereby what was heard by one listener must have been heard by the other and have been the actual words of the speaker.

In this situation the conversation overheard by a witness would clearly be the proper subject of his testimony, where the conversation itself as between the parties is competent and relevant to the issues.

Gildersleeve and Guy, JJ., concur.

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