Elias v. Coleman & Krause, Inc. , 150 N.Y.S. 92 ( 1914 )

BIJUR, J.

The only question presented by this appeal is whether the learned judge below erroneously excluded certain proof offered by the plaintiff. The latter, in order to prove substantial performance of an agreement to deliver to defendant, under the terms of a contract, certain glass (called “lights”) which were placed in sash, offered three réceipts calling, respectively, for certain quantities of lights. These receipts are marked, in the present trial, Plaintiff’s Exhibits C, F, and N, respectively. Plaintiff then offered in evidence extracts from the minutes of the previous trial, which defendant’s counsel conceded to be correct, marked Plaintiff’s Exhibits B and E for identification, respectively, in the present record. These are claimed by plaintiff to constitute admissions made by the defendant’s counsel on the previous trial, and to be binding as such on his client in the present trial. Respondent contends, on the other hand, that these admissions were conditional or qualified. There is, however, nothing in the admissions to indicate either condition or qualification, and therefore, under defendant’s own authorities, such as Owen v. Cawley, 36 N. Y. 600, and Clason v. Baldwin, 152 N. Y. 204, 46 N. E. 322, the testimony showing these admissions should have been admitted, and the case as thus made submitted to the jury.

Judgment reversed, and a new trial granted, with costs to appellant to abide the event. All concur.