Weinberg v. Kram — 44 N.Y. St. Rep. 126

Majority

p. 126

J. Lewis Weinberg, App’lt, v. Louis Kram, Resp’t.

(New York Common Pleas, General Term,

Filed February 1, 1892.)

Headnote

Evidence—Rebuttal op admissions.

During the trial of an action, but before any testimony was taken, the defendant admitted that a certain letter was sent by him to the plaintiff. Later defendant was permitted to state that he did not write the letter and never saw it, and to detail the circumstances under which it was written, in order to explain and rebut the presumption arising from the fact that he had sent it. Held, that it was not error to"receive the testimony, although it involved a statement by the witness of what was said to a third person at the time, who was a friend of the plaintiff and was acting for the defendant.

Appeal from a judgment rendered in defendant's favor in the district court of the city of Mew York for the seventh judicial district.

J. Lewis Weinberg, for app’lt; Jacob Levy, for’resp’t.

This action was brought to recover the sum of twenty-five dollars alleged to be due plaintiff for services alleged to have been rendered the defendant as an attorney and counsellor at law. The defendant denies ever employing plaintiff or requesting, any advice from him, or that he ever rendered any service whatever or gave or was requested to give any advice in

p. 127

consideration of which the defendant agreed to pay the plaintiff the sum. of of twenty-five dollars or any other sum of money.

The evidence upon the trial was conflicting. As we have often decided in this court, upon such conflict we will not reverse the judgment of the court below unless it is made to appear that that court overlooked some material fact or its decision was against the-clear weight of evidence or was influenced by prejudice, passion or bias. Indeed, the appellant does not ask us to reverse on any of these grounds, and we think from an examination of the record the evidence fully justified the justice in arriving at the conclusion he did.

But it is insisted by the appellant that there was fatal error-committed by the justice in the admission of evidence. Before any testimony was taken, the defendant admitted that a certain letter was sent by him to plaintiff, which is as follows:

“Hew York, July 20, 1891.

“ Dear Sir—In the matter of the Insurance Company, you will please'not trouble yourself about giving me any opinion, as things have changed.”

During the progress of the trial, defendant’s counsel asked him whether he ever wrote this letter, to which the plaintiff objected on the ground that it had been admitted that the letter had been sent to the plaintiff by the defendant, which was overruled, and the-defendant was permitted to state that he did not write the letter and never saw it, and to detail the circumstances under which it was written.

This we think no error, because the plaintiff had the full benefit of the admission by the defendant that he sent the letter, and the defendant was entitled to state the circumstances under which it was written by another, in order to explain and as far as possible rebut the presumption arising from the fact that he had sent it. This he could have done even had the witness he desired been present and testified to the writing of the letter. It is true this involved a statement by the witness of what was said to a third person at the time, who was a friend of the plaintiff and was acting for the defendant Under such circumstances it was not error to receive the testimony, and the judgment should be affirmed, with costs.

Bischoff, J., concurs.