Weston v. Reich — 28 N.Y. St. Rep. 81

Majority

p. 81

Abijah Weston and James D. Weston, Resp’ts, v. Lorenz Reich, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.)

Headnote

Evidence—Witness—Code Civ. Peo., § 829.

A question put to defendant on cross-examination as to the meaning of certain statements in a letter written by defendant to one of the plaintiffs who has since died is not an inquiry as to transactions with such deceased plaintiff so as to permit defendant to testify to conversations with deceased which caused him to write the letter.

Appeal from judgment in favor of the surviving plaintiff entered upon the report of a referee.

Abram Fling, for app’lt; F. P. Bellamy, for resp’ts.

This is an appeal by the defendant from a judgment in favor of the plaintiff upon the report of a referee appointed to hear and determine the action.

The action was for lumber sold and delivered and the defense set up was an agreement to take wine in payment for the lumber.

The referee has found all the facts in favor of the plaintiff and refused to find the facts desired by the defendant, and we find his report well sustained by the evidence and the circumstances surrounding the transaction.

James Weston, one of the original plaintiffs, died after the commencement of the action and during the trial the counsel for the plaintiff offered in evidence a letter written by the defendant to

p. 82

James Weston in his lifetime. The letter was received without objection.

Upon his cross-examination the defendant was asked what he meant by certain statements in that letter, and' then his counsel asked him this question:

“ Q. Did you have any talk with Mr. Weston preceding the letter, or with B ulmer subsequently, which caused you to write that letter ? ” The question was objected to as incompetent and a violation of § 829 of the Code, the objection was sustained, and the counsel for the defendant excepted.

The counsel for the defendant claims that ruling was erroneous and requires a reversal of the judgment, but we cannot concur in that view. The counsel for the plaintiff had made no inquiry of the defendant respecting any transaction or communication between him and the deceased plaintiff, and no such testimony was called for by the question of the plaintiff’s counsel. He simply asked the defendant the meaning of certain expressions and statements in the letter, and thus called only for the operation of his own mind.

We find no error in the record and the judgment should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.