Sackett Plaster Board Co. v. Amsterdam Bldg. Co.

Majority

p. 238

(66 Misc. Rep. 158.)

SACKETT PLASTER BOARD CO. v. AMSTERDAM BLDG. CO.

(Supreme Court, Appellate Term.

February 18, 1910.)

Headnote

Evidence (§ 471^[1] )'— Opinion Evidence—Conclusions.

The question to a witness, to prove that a contract entered into by R. in his own name was made by him as agent, “Por whom was R. acting when he signed the contract?” is properly excluded as calling for a conclusion, especially when subsequent efforts to prove the agency by other testimony fail.

[Ed. Note.—Por other cases, see Evidence, Cent. Dig. § 2175; Dec. Dig. § 471.^[1] ]

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by the Sackett Plaster Board Company against the Amsterdam Building Company. From a judgment dismissing the complaint without prejudice, plaintiff appeals.

Affirmed.

Argued before SEABURY, LEHMAN, and BIJUR, JJ.

Edo E. Mericelis, for appellant.

Robert W. Bernard, for respondent.

Plaintiff relied on an exception to the exclusion of the question, “For whom was Ruble acting when he signed this contract?” it being plaintiff’s endeavor to prove that a contract entered into with the defendant by Ruble in his own name was made by him as agent for the plaintiff.

Questions of this character have frequently been sustained by the Court of Appeals, as calling for an answer in respect of a fact, rather than a statement of a conclusion. Sweet v. Tuttle, 14 N. Y. 465 , 471-472; Knapp v. Smith, 27 N. Y. 277 , 281; De Wolf v. Williams, 69 N. Y. 621 , 622; Kelly v. Doody, 116 N. Y. 575 , 583, 22 N. E. 1084 ; Frear v. Sweet, 118 N. Y. 454 , 459-460, 23 N. E. 910 ; Pichler v. Reese, 171 N. Y. 577 , 578, 64 N. E. 441 ; People v. Mingey, 190 N. Y. 51 ,

p. 239

64, 66, 82 N. E. 728 . And the rule was followed in Levy v. Huwer, 80 App. Div. 499 , 81 N. Y. Supp. 191 . In but one case, Nicolay v. Unger, 80 N. Y. 54 , 56, has the Court of Appeals approved the exclusion of such a question. It has, however, often said that it is but a narrow dividing line which separates the permissible from the obnoxious questions of this character—a line to be drawn according to the circumstances of the particular case.

In the case at bar, the correctness of the ruling of the trial judge in excluding the question is confirmed by the fact that, after the exclusion, plaintiff endeavored to prove Ruble’s agency by other testimony, but failed to do so, thus demonstrating that the answer to the question, had it been allowed, would have been a statement of a mere conclusion.

Judgment affirmed, with costs. All concur.

Cases cited

Sweet v. Tuttle 14 N. Y. 465 N.Y. at 471-472 p. 238
Knapp v. Smith 27 N. Y. 277 N.Y. at 281 p. 238
De Wolf v. Williams 69 N. Y. 621 N.Y. 1877-04-27 at 622 p. 238
Kelly v. Doody 116 N. Y. 575 N.Y. 1889-11-26 at 583, 22 p. 238
Frear v. Sweet 118 N. Y. 454 N.Y. 1890-02-25 at 459-460, 23 p. 238
Pichler v. Reese 171 N. Y. 577 N.Y. 1902-06-27 at 578, 64 p. 238
Treadwell v. Clark 190 N. Y. 51 N.Y. 1907-11-19 p. 238
Levy v. Huwer 80 App. Div. 499 N.Y. App. Div. 1903-03-26 p. 239
Nicolay v. Unger 80 N. Y. 54 N.Y. 1880-02-03 at 56 p. 239