#### Cornelia M. Arnold, Respondent, *v.*Rockland Lake Trap Rock Company, Appellant.

Second Department,

January 10, 1908.

Evidence — testimony of agent in another action when inadmissible — prejudicial error.

In an action against a corporation to restrain the use of “mud blasts,'* it is error to allow the plaintiff, over objection, to read testimony given by the defendant’s president in another action, to which the defendant was not a party, showing that the use of mud blasts was not economical or necessary.

The president of a corporation is simply its agent for limited purposes, and his declarations are only admissible against the corporation when they are part of the *res gestee*as to the subject of the inquiry.. They must be made not only during the continuance of the agency, but in regard to a transaction pending at the very time. _ . .

Such error is not cured by the fact that the defendant subsequently called its president as a witness, if his' testimony related to matters different from those involved in the other action.

The introduction of such incompetent testimony will be deemed to have been prejudicial when the trial court predicated findings of fact thereon.

Appeal by the defendant,. the-.Rockland Lake Trap Rock Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 11th day of April, 1907, upon the decision of the court rendered-after a trial at the Westchester Special Term.

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      *Charles F. Brown [Harmon S. Graves*and *Edward Wells, Jr.,*with him on the brief], for the appellant.

*Frank L. Young,*for the respondent.

Woodward, J.:

This action was tried at Special Term without a jury, and the justice presiding directed the entry of a decree, restraining the defendant from using so-called “ mud blasts ” in its quarries at any time, and adjudging such blasts constituted a nuisance. The judgment also awarded the plaintiff damages for injuries done the plaintiff’s house by reason of these “mud blasts.” “Mud blasts” consist in placing sticks of dynamite on rock to be broken, covering it with earth and exploding it. To make out her case the plaintiff read the testimony of one Wilson P. Foss, tile president .of the defendant, given in an action wherein one Arthur C. Tucker was plaintiff and the Mack Paving Company was defendant. Defendant’s counsel objected to the reading of this testimony,, but the objection was overruled and the testimony given was read as admissions provable against the defendant. The testimony so read related to very material questions at issue in this case, and upon the strength of this testimony so read the trial court made findings X, XI and XII of its decision, which read as follows,: •

> . “ X. That it. is commercially possible for the defendant, and the defendant can conduct its said business at a profit, the shattering such rock fragment's, if it abandon said - müd blasts ’ and rise instead thereof the ‘ block hole blasts,’ an equally effective method to break up such rock fragments too large to be broken by hand sledges,

> “XL That the Use of the ‘mud blasts’ by the defendant is not economical, ánd is used by the defendant to accomplish the immédiate removal of the stone near-noon or near night.

> “ XII. That with ordinary, proper, careful and prudent operation of its quarry, the house of the plaintiff need not be shaken or jarred in any-way.”

We think the trial court erred in permitting the plaintiff to read the testimony of Mr. Foss given in the Tucker action. The testimony in.question was not given in an action .in which the defendant was a party. He simply testified as a witness in a litigation between parties, strangers to this action, Ilis testimony so given *661cannot be used as an admission of the defendant, which the plaintiff had a right to prove as a part of her main case. Mr. Foss was the president of the defendant, but that fact does not give the plaintiff ' the right to make his declarations the declarations of the defendant. As the president of the defendant he was simply the agent of the defendant for certain limited purposes, and subject to all the rules governing declarations or admissions by agents. The general rule is that declarations by an agent are only admissible when they are part of the *res gestee*which is the subject of the inquiry. They must be made not only during the continuance of the agency, but in regard to a transaction pending at the very time. *(Anderson*v. *Rome, W. & O. R. R. Co.,*54 N. Y. 334, 340; *First Nat. Bank*v. *Ocean Nat. Bank,*60 id. 278; *Luby*v. *Hudson River R. R. Co.,*17 id. 131; *White*v. *Miller,*71 id. 118, 134; *Campbell*v. *Emslie,*101 App. Div. 369; affd., 184 N. Y. 589; *National Bank of Rondout*v. *Byrnes,*84 App. Div. 100; affd., 178 N. Y. 561.) In the last case cited it was held that the declarations of the president of a bank made long after a transaction had taken place, and not in the course of his official duties, were not admissible against the bank.

When, therefore, the president of the defendant testified in the Tucker case, he was performing no official duty for the defendant. He was *transacting'no*business for it, and to permit his testimony given on a trial in no way concerning the defendant to be. read on the trial of this action violated well-recognized rules of evidence and law. (See, also, *Taylor*v. *Commercial Bank,*174 N. Y. 181.)

The fact that the president, Mr. Foss, was subsequently called and testified as a witness for the defendant upon this trial did not in our judgment cure the error. His testimony given on this trial related to many matters different from those called forth in the Tucker case. The plaintiff evidently relied on admissions made by the witness in the Tucker case independent of any testimony given by him on. this trial. Just to what extent liis testimony influenced the trial court in reaching its final ■ conclusion perhaps cannot be here determined, but it is sufficient te say that the testimony read from the Tucker case was deemed of sufficient importance to predicate upon it certain findings of fact, which went to support the final decree rendered. The illegal testimony admitted had such an *662important bearing on the final disposition of this case that we are not prepared to hold its admission harmless,

For these reasons we are of the opinion the judgment should be reversed and a new trial granted, costs to abide the final award of-costs..

Jenks, Gaynor, Rich and. Miller, JJ,, concurred.

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Judgment reversed and new trial granted, costs to abide the final award of costs.