Weston v. Reich , 28 N.Y. St. Rep. 81 ( 1889 )

Dykman, J.

This is an appeal by the defendant from a judgment in favor of the plaintiff upon the report of a referee appointed to hear and determine the action. The action was for lumber sold and delivered, and the defense-set up was an agreement to take wine in payment for the lumber. The referee has found all the facts in favor of the plaintiff, and refused to find the-facts desired by the defendant; and we find his report well sustained by the-evidence and the circumstances surrounding the transaction.

James Weston, one of the original plaintiffs, died after the commencement, of the action; and during the trial the counsel for the plaintiff offered in evidence a letter written by the defendant to James Weston in his life-time. The letter was received without objection. Upon his cross-examination the-defendant was asked what he meant by certain statements in that letter, and then his counsel asked him this question; “Question. Did you have any talk with Mr. Weston preceding the letter, or with Bulmer subsequently, which, caused you to write that letter?” The question was objected to as incompetent, and a violation of section 829 of the Code. The objection was sustained, and the counsel for the defendant excepted. The counsel for the defendant claims that ruling was erroneous, and requires a reversal of the judgment, but we cannot concur in that view. The counsel for the plaintiff had made no inquiry of the defendant respecting any transaction or communication between him and the deceased plaintiff, and no such testimony was called for by the question of the plaintiffs’ counsel. He simply asked the defendant the meaning of certain expressions and statements in the letter, and thus called only for the operation of his own mind. We find no error in the record, and the judgment should be affirmed, with costs.