Stickney v. Ward — 46 N.Y.S. 382

Majority

p. 382

(20 Misc. Rep. 667.)

STICKNEY v. WARD.

(City Court of New York, General Term.

July 2, 1897.)

Headnote

Evidence—Admissions.

An affidavit, made by a party upon a motion in an action, may be admitted in evidence against him, upon the trial of the action, as an admission or declaration, without first calling his attention to the statements therein contained.

Appeal from trial term.

Action by Joseph L. Stickney against Thomas R. Ward. From a judgment on a verdict for plaintiff, and an order denying a new trial, defendant appeals.

Affirmed.

Argued before VAN WYCK, C. J., and MCCARTHY and SCHUCHMAN, J J.

Franklin Bien, for appellant.

David Leventritt, for respondent.

The plaintiff’s contention is that on July 1, 1895, he sold on the market, through the defendant, who acted as his stockbroker, 100 shares of a certain stock, in two separate orders, of 50 shares each; that, as to one block of 50 shares, the defendant, on plaintiff’s order, subsequently purchased 50 shares to meet this sale, and his account with defendant was thereby closed as regards this block; but that, as to the other block of 50 shares, he continued short of the market until July 15th, when he requested defendant to buy in 50 shares to cover that short sale, which he refused to do, and, by reason thereof, plaintiff lost the profit which he would have made of $275, for which this action is brought. The defendant contended that although he had rendered an account to plaintiff, showing sales of two blocks of stock of 50 shares each on July 1st, as a fact he had only sold one block, and that plaintiff had not given him any order to sell any more on that day, and that the entry as to the other block was a mistake made by defendant’s bookkeeper. The question for the jury to determine was whether plaintiff had on July 1,1895, given orders to sell-two blocks of 50 shares each, or only as to one block; and their verdict, with plaintiff’s contention that he ordered him to sell two blocks, is not against the evidence or weight of evidence.

The appellant contends that an affidavit made by the defendant, and filed in this court, on the hearing of a former motion in this action, was improperly admitted in evidence, against his objection. This was read as a declaration or admission of the party defendant, and it was not error to admit it, although defendant’s attention had not first been called to his statement therein contained.

Judgment and order affirmed, with costs. All concur.