#### Benjamin F. Conway, Appellant, *v.*C. Amory Stevens, Respondent.

(Supreme Court, Appellate Term,

April, 1900.)

Party — Cannot be discredited by proof that he had cheated in another transaction.

Where a broker sues for commissions on the sale of a condenser, earned as alleged by procuring a customer to whom the principal *244himself subsequently sola the article, the latter cannot read in evidence a portion of a letter from the purchaser’s agent containing irrelevant statements charging the broker with cheating in another prior transaction, and such evidence is particularly objectionable where the agent, although deposing for the plaintiff, proves te be a witness hostile to him

Appeal by the defendant from a judgment of the General Term of the City Court of Xew York, affirming á judgment entered in favor of the defendant, upon the verdict of a jury.

The nature of the action and the material facts are stated in the opinion.

John A. Dutton, for appellant.

Frank E. Hippie, for respondent.

Giegebioh, J.

The action is to recover commissions upon the sale of a steam condenser and pump (called in the case a “ condenser ”). The complaint alleges that the defendant employed the plaintiff to sell such condenser, and that the former agreed the latter should receive as commissions for such services all that he could obtain over the sum of $600 therefor, that the plaintiff subsequently procured a customer who was ready, able and willing to pay $850 for the said apparatus, and that the defendant sold the same to such customer. The amended answer contains, in • substance, a general denial, and allegations to the effect that upon plaintiff’s representation that the condenser was worth but $700, an option for five days was given him by the defendant to purchase the same for the sum of $600, of which, however, he did not avail himself, and that at the expiration of such period, the defendant rescinded the option, of which, it is averred, the plaintiff had due notice. The answer further alleges that the defendant afterwards sold such condenser for the sum of $750. Hpon the trial there was a direct conflict of testimony upon nearly every point at issue, and were there no questions of law raised by exceptions taken -this Appellate Term could not disturb the judgment.

' The plaintiff claims, however, that the trial justice committed reversible error in admitting in evidence against his objection and exception the following letter:

> *245“Baltimore, Md., *February 21th, 1891.*i

> “ Mr. C. Amort Stevens,

> “ New York, 39 Broad Street: ;

> “ Dear Sir: Yours of the nineteenth at hand, and in reply will say Mr. Conway represented to me that the condenser and pump belonged to him. He said nothing about you or what he paid you for the condenser and pump. He did not say a word about you in the matter at all. He asked me $850, but I never told him I would buy it at any price. I had another condenser in view. Briggs had it; he got it from Chester, Pa. I did buy two boilers from Conway, but never got cheated so bad in my life. We have stopped dealing with him altogether, as he done us so bad.

> “ Yours truly,

> “Fred. E. Jones.”

• It appears from the testimony that Jones, the writer of the foregoing letter, was the agent and representative of the firm of It. Moore *&*Company of Mobile, Alabama, to whom the condenser was offered for sale by the plaintiff, and to whom it was subsequently sold by the defendant, and that the plaintiff and Jones had been to League Island, in the city of Philadelphia, where the condenser was, and the latter had examined it with a view to its purchase. In his deposition, taken at the instance of the plaintiff, and read by the defendant at the trial, Jones testifies that at the time the plaintiff was trying to sell the condenser to him Oon- . way said he had a condenser and pump for sale. “ He gave me no information that he was selling it for some one else.” Subsequently, the witness identified the letter referred to as having been written by him to the defendant, and it was then admitted in evidence as above noted. For what purpose this letter was offered does not appear upon the record. The defendant’s counsel in his brief claims that it contains a contradiction of the testimony previously given by Jones, as above stated, and that such was the purpose for which it was offered. It is difficult to see in what respect it contradicts the witness’s previous statements. ' Assuming, however, for the sake of argument that a portion of the letter did establish a contradiction, there was no justification whatever for putting before the jury the concluding portion thereof. It was a mere statement without proof that the plaintiff had been guilty of dishonest practices. Had only that portion of the letter, which, it *246is claimed, contradicts the witness’s previous testimony been admitted, the error might, under the circumstances, be deemed harmless, but since the entire letter, containing, as it did, immaterial and irrelevant statements, was read to the jury, without any statement whatever as to the purpose for which it was offered, it is impossible for us to say that the contents of the paper did not seriously affect the credibility of the plaintiff in their minds, and that it was not an important factor in influencing them to the conclusion which they reached. Hence, the admission of such evidence was improper. Moreover, it clearly appears that the witness Jones was hostile to the plaintiff, at whose instance he was called, and to permit him to accentuate his conceded animosity against the plaintiff, by reading the letter in question, was manifestly erroneous as well as prejudicial. The case of People v. Fletcher, 44 App. Div. 199, is not, as might be claimed upon a hasty reading, in conflict with these views. There a witness’s letter to his lawyer (the question of privilege not arising), the concluding paragraph of which was to the effect, that he (the witness) had covered the defendant’s shortcomings in palming off a counterfeit violin, was admitted in evidence under the defendant’s objection and exception. Upon an appeal to the Appellate Division of this department, it was urged that the reading of such paragraph was prejudicial to the defendant, but the ruling of the recorder in admitting the same in evidence was upheld by a bare majority of the court. Mr. Justice Patterson, who wrote the prevailing opinion, said (p. 212), that it was “ a statement of the witness as to his own conduct and actions, stamping them with dishonesty and directly impairing his credit.” In the case at bar, however, the situation is entirely different. As seen, Jones merely complained that he had been defrauded by another, *i. e.,*the plaintiff, while in the Fletcher case, the witness admitted his own dishonesty in the transaction.

There were other grounds of error assigned, but in view of the conclusion above reached, it will not be necessary to consider them.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekmah, P. J., and O’Gobmaw, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.