Mautner v. Brody ( 1910 )

LEHMAN, J.

The plaintiffs have obtained a judgment against the defendant for money due upon a contract to alter premises owned by the defendant. Upon the evidence submitted the judgment can be sustained only upon the theory that the defendant was the undisclosed principal, and that the1 contract made the alleged tenant of defendant, in whose name the contract was made, in fact the defendant’s agent.

The plaintiffs had very little direct testimony upon this issue, and attempted to prove their case largely by circumstantial evidence. Important elements in the plaintiffs’ chain of circumstances upon which they rely are the alleged facts that the defendant authorized the alterations made by the plaintiffs at the alleged tenant’s request, and that the tenant never had a lease. To prove the first alleged fact they introduced in evidence the application of the architects to the building department, stating that the alterations were authorized' by the defendant, the owner of the premises. Clearly the declaration out of court of a third party not shown to have been in defendant’s employ is no evidence against the defendant. This application was not introduced to impeach the architect, who was plaintiffs’ own witness.

To prove the second fact the plaintiffs introduced in evidence a declaration made by the alleged tenant in supplementary proceedings. This was objectionable upon the same ground. The appellant claims that it was not introduced to show that there was no lease, but to show the falsehood of the witness’ previous statement that he had a three-year lease. Aside from the fact that plaintiffs’ attorney stated to the justice at the trial that “the purpose is to show there is no lease at all,” it was not admissible for the purpose of contradicting the witness upon this point. The witness had not testified upon this point upon his direct testimony. He had been called by the defendant to contradict the plaintiffs upon one single point. He was then asked on cross-examination: “Have you got.a three-year lease?” The question was objected to specifically as not being cross-examination, as he was not questioned on this point on direct examination. Upon this point, therefore, he became the plaintiffs’ witness, and cannot be contradicted by proof of previous inconsistent statements.

There are other errors in the record, but we need not decide whether such errors are material. Upon a new trial they will probably be corrected. The two errors considered were clearly prejudicial, and require a new trial.

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

DAYTON, J., concurs. GIEGERICH, J., concurs in the result.