Heimerdinger v. Lehigh Valley Railroad Co. , 56 N.Y.S. 188 ( 1899 )

Freedman, P. J.

The action was brought to recover damages for the breach of a written advertising contract. The answer contains a general denial and then sets up that the said advertising contract was procured through false and fraudulent representations, that the book or publication in which the advertisement was to be printed was about to be issued under the authority and by the members of the department of docks of the city of Hew York, that the defendant relied upon said representations in entering into said contract, and that the representations were false and fraudulent.

At the trial the issues thus joined were sharply litigated. The testimony was conflicting, but sufficient to carry the case to the jury, and the case appears to have been submitted to the jury under a charge to which no exception was taken.

The jury found for the plaintiff, and the verdict having been sustained by the General Term of the City Court upon the facts as well as the law, the judgment appealed from will not be disturbed except for errors of law.

The contention of the defendant throughout the trial was that its agents had been induced to sign the contract in question by the representations of plaintiff’s canvasser that the book or publication in which the advertisement was to- be inserted, was to be of an official character, and that such agent, upon finding out that such was not the fact, refused to give the advertisement.

The plaintiff was a witness on his own behalf, and, among other things, testified to the effect that, at the time he asked defendant’s agent for the advertisement, said agent admitted that there had been no misrepresentation to the canvasser.

In the course of his cross-examination he was asked as to how many subscribers he got to his book, how many of those subsequently withdrew, and how many parties he sued on contracts similar to the contract in question.

The questions upon these points were severally objected to by plaintiff’s counsel as irrelevant, incompetent and immaterial, and the objections were sustained and the questions excluded and the defendant duly excepted. The questions were competent and proper on cross-examination because the defendant had a right to attack the credibility of the plaintiff as an interested party. Their exclusion was error.

On the part of the defendant, Edward Einstein was called as a witness. He testified1 that he was one of the dock commissioners in 1897 and treasurer of the board, and that when the plaintiff called upon him and asked for authorization to- malee the contemplated publication,- he told him that no authority would be given him whatsoever. In the course of his cross-examination, this witness admitted that at the time referred to George S. Terry was secretary of the department of docks, that the paper on which a certain letter shown to him was written, is the official letter head of the department of docks, and that the signature to said letter is the signature of George S. Terry as secretary of the department of docks. Plaintiff’s counsel thereupon offered the letter in evidence. Defendant’s counsel objected to its reception unless it was shown that Mr. Terry had the right from the board to- sign such a letter. The trial judge, against defendant’s objection and exception,' received the letter with the' remark, “ I will allow it for what it is worth. It is prima facie evidence that he signed it with the approval of the dock department.” The letter was addressed to the plaintiff and purported to be an official authorization by the department of docks for the plaintiff to publish 2,500 copies of an

official review of the department of docks. Its reception in evidence under the circumstances stated clearly constituted error. Even in the case of promissory notes it has been held by the courts that proof that a promissory note, purporting to be made by a corporation and signed by its president and secretary, does not show that it is the note of the corporation without proof that it was made by its authority. People’s Bank v. St.. Anthony’s Roman Catholic Church, 109 N. Y. 512; Bangs v. National Macaroni Co., 15 App. Div. 522. That being the rule as to the corporations referred to, the same rule requiring authority to be shown applies with equal force to a municipal department whose powers are strictly limited by statute.

The error committed in receiving the said letter in evidence with the remark made in the presence of the jury that it was prima facie evidence that the secretary signed it with the approval of the dock department, had a tendency to prejudice the defendant’s case, but its probable injurious effect upon the jury was still further intensified by the following subsequent occurrence. Mr. Terry was called as a witness for the plaintiff in rebuttal, and upon his cross-examination he was asked this question, viz.:

“ Q. Mr. Terry, was there any resolution of the board of docks authorizing you to write to Mr. Heimerdinger, the plaintiff, such a letter as you did? (Eeferring to the letter hereinbefore referred to.)” This was objected to by the plaintiff as not the best evidence and the objection was sustained and the defendant excepted. The question did not call for the contents of the resolution, but simply for the fact of the existence of any such resolution, and if it had been allowed, the proper answer would have been yes or no. If no, that ended it, if yes, it would have-been followed up by proof as to the book containing the resolution, the production of the book and the offering of the resolution in evidence. As the letter had already been admitted in evidence with the statement by the court to the jury that it was prhna facie evidence of the act of the board, the defendant had a right to show by the cross-examination of Mr. Terry, as the secretary of the board, that after all he had no authority from the board.

The exclusion of the question last referred to, therefore, constituted error.

The errors pointed out appear upon an examination of the whole case to be of sufficient importance to entitle the defendant to a new trial.

The judgment and order appealed from should be reversed and a new trial ordered, with costs and disbursements to' the appellant to abide the event.

MacLean and Leventritt, JJ., concur.

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