p. 700Patterson Gas Governor Company, Resp’t, v. Lichtenstein Bros. Company, App’lt.(New York, Common Pleas, General Term,Headnote
1. Appeal—Conflicting evidence.Common pleas will not, in case of conflicting evidence, reverse the judgment of a district court, unless it is clear that injustice has been done.
3. Evidence—Admissions—President of corporation.
The declarations of the president of a corpóration are admissible in evidence only for the purposes of contradiction.
Evidence on direct examination, though not directly responsive to the question put, is not objectionable so long as it is pertinent to the issues in the case.
Appeal from a judgment in the district court in the city of New York for the eighth judicial district.
J. 0. Quggenheimer, for app’lt; P. O. Taiman, for resp't.
This action is brought to recover the purchase price of a gas governor furnished by plaintiff to defendant Defendant’s promise'to pay was'made upon the express condition that the gas governor would demonstrate after thirty days’, trial a saving of from 40 to 50 per cent, in the consumption of gas. A contract similar in all respects to the one under consideration on this appeal except as to the length of time for trial allowed, was before us in Patterson Gas Governor Co. v. Glenby, 4 Misc. Rep. 532 ; 54 St. Rep. 119 , and there we held the burden of proving the performance of the condition rested upon the plaintiff. And on the trial of this action, the plaintiff seems to have been governed by that decision, and offered considerable evidence tending to sustain that burden. It is true that it was contradicted by evidence on behalf of the defendant. But this conflicting evidence as is manifest from the opinion delivered by the justice who tried
p. 701the case was weighed by him in his usual careful manner, and he determined the controversy in favor of the plaintiff. Where the evidence is conflicting, we will not reverse
the judgment of a district court, unless it is clear injustice has been done,
Weiss v.
Strauss, 39 St. Rep. 78 ;
Schwartz v.
Weckler, 2 Misc. Rep. 67 ; 49 St. Rep. 145 ;
Lynes v.
Hickey, 54 St. Rep. 120 . We may add that a careful reading of the testimony leads us to think so far from injustice having been done in this case, that the justice arrived at a correct conclusion on all the testimony, and that the defendant’s refusal to pay for, or longer use the gas governor was because it found other companies would furnish it with the same kind of an attachment or govprnor free of charge. It only remains to consider the exceptions taken to the introduction or exclusion of evidence, Mr. Lindheim, the president of the defendant, was examined as a witness on its behalf, and during the progress of the examination his business card was shown him, on which was written “M. A. Lewin, c\0 Julius Stein & Go., 515 Broadway. The hearer represents the Patterson Gas Governor Co., the party I spoke of. If you try the governor I am sure you will effect a large saving in your gas bills. E. L.; ” and he was asked whether it was in his handwriting, to which he answered that it was. It was then offered in evidence and defendant’s counsel excepted to its admission. Appellant now contends that this was error, and that the president had no power to bind his company by any acts of his of this kind, especially as it was three months after the governor had been put in. And this would undoubtedly be true had it been offered in chief or to prove an admission. But it was evidently not offered for that purpose but to contradict .the witness upon a material point, and tended to impair the force of his testimony. Mr. Patterson, the general superintendent of the plaintiff, was a witness on its behalf, and in his direct examainination when testifying as to certain gas bills, was asked whether or not these hills were for the time the governor was on, and he answered by stating the time it was on and the amount of gas then consumed and also when it was not on, and the quantity of gas consumed during that time. This latter part the defendant objected to and moved to strike out that portion of the answer, which was denied. We think there was no error in this refusal, as although is may not have been directly responsive to the question put, it did not lie in the mouth of the defendant to object to it on that occasion so long as it was pertinent to the issues in the case, and we think it was. The other objections and exceptions taken during the progress of the trial were based upon similar grounds and we think are equally untenable. . -
The judgment should therefore be affirmed, with oats.
Bischoff, J., concurs.