Goldman v. Brandt — 25 N.Y. St. Rep. 864

Majority

p. 864

Frank Goldman, Pl’ff and Resp’t, v. Louise Brandt, Def’t and App’lt.

(City Court of New York, General Term,

Filed May 31, 1889.)

Headnote

1. Evidence—Competency.

' Authority given by plaintiff to his son to receive from defendant a note or acceptance of another firm on account of the money, due plaintiff did not authorize the son to sign a receipt in full of the debt; and such receipt signed by plaintiff's son is not admissible in evidence against plaintiff.

3. Same—Res gestae.

Evidence of transactions occurring several weeks after delivery of the note, and forming no part of the res gestas, is not admissible.

Appeal from judgment entered on verdict in favor of the plaintiff.

David Leventritt, for app’lt; Julius Goldman, for resp’t.

The issue to be determined was whether the plaintiff accepted the note of Washing & Palmer in “full satisfaction” of the plaintiff’s demand. In order to prove the payment, the defendant offered in evidence, a receipt, in these words:

“New York, June 8, 1888.

“ Received of L. Brandt, his order to Washing & Palmer for three hundred and seventy-one dollars and seventy-five cents, in full up to date.

“ OTTO GOLDMAN.”

The plaintiff objected to the reception of the receipt. The court admitted the receipt in evidence, and the plaintiff excepted. We think the evidence was incompetent.

It was not signed by the plaintiff, or by his authority. The plaintiff authorized his son to accept the note or order, but gave him no authority to sign any writing, acknowledging the fact that it was received “in full,” or in full payment. We also think the court erred in allowing the questions at folios 31, 32, 44, 45, 51. They related to transactions that .transpired some weeks subsequently to the making and delivery of the note, and were no part of the res gestae. . See Waldele v.N. Y. C. & H. R. R. R. Co., 95 N. Y., 274 ; Wilson v. Pope, 37 Barb., 321 : Moore v. Meacham, 10 N. Y., 207 ; Green v. Disbrow, 56 id., 334 .

That the error prejudiced the plaintiff is clear. The evidence, though incompetent, evidently influenced the jury, and may have controlled them in arriving at a result.

For these reasons, the judgment appealed from must be reversed, with costs to abide the event.