American Encaustic Tiling Co. v. Reich

New York Court of Common Pleas

American Encaustic Tiling Co. v. Reich

12 N.Y.S. 927, 35 N.Y. St. Rep. 579, 1891 N.Y. Misc. LEXIS 901

DecidedFebruary 2, 1891

StatusPublished

This text of 12 N.Y.S. 927 (American Encaustic Tiling Co. v. Reich) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Encaustic Tiling Co. v. Reich, 12 N.Y.S. 927, 35 N.Y. St. Rep. 579, 1891 N.Y. Misc. LEXIS 901 (N.Y. Super. Ct. 1891).

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Opinion

Per Curiam.

The decisive question in the case, namely, whether the architect employed by defendant to superintend the construction of the building had authority, real or apparent, to make the contract with plaintiff, was strenuously litigated on the trial; and, as there is sufficient evidence of authority in the record to carry the case to the jury, their verdict is here conclusive, unless it be vitiatgd by the alleged errors in the admission and exclusion of evidence. Appellant’s chief exception is to the admission of evidence that, in another and different transaction, defendant recognized the architect as his agent; but to this contention there are two sufficient answers: First, the evidence is merely that “I was to see the architect, ” and so shows no recognition by defendant of the architect’s authority to make the contract in controversy; and, secondly, if there were such recognition, it was of authority in the architect touching the very transaction in dispute. Hence Duryea v. Vosburg, 121 N. Y. 57, 24 N. E. Rep. 308, is not in point; for in that case the attempt was to establish agency in one transaction, by proof of agency in another and different transaction. Page 65, 121 N. Y., and page 310, 24 N. E. Rep.

The exception to the exclusion of certain evidence on cross-examination is also invalid for two reasons: First. The plaintiff was then presenting its case, and, even were the offered evidence competent, it was discretionary with the court whether to receive it at that moment or to reserve its admission as properly part of defendant’s proof. Neil v. Thorn, 88 N. Y. 270. Secondly. The substance of the excluded testimony was subsequently brought out by appellant.

Appellant’s other principal exception is as untenable as the former ones, for evidence that the witness had tiling work done in other buildings was clearly competent for the purpose for which it was received, namely, his capacity as an expert to speak to the value of laying tiles. In the remaining exceptions we see no error prejudicial to appellant. The judgment and order appealed from must be affirmed, with costs.

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Per Curiam.

The decisive question in the case, namely, whether the architect employed by defendant to superintend the construction of the building had authority, real or apparent, to make the contract with plaintiff, was strenuously litigated on the trial; and, as there is sufficient evidence of authority in the record to carry the case to the jury, their verdict is here conclusive, unless it be vitiatgd by the alleged errors in the admission and exclusion of evidence. Appellant’s chief exception is to the admission of evidence that, in another and different transaction, defendant recognized the architect as his agent; but to this contention there are two sufficient answers: First, the evidence is merely that “I was to see the architect, ” and so shows no recognition by defendant of the architect’s authority to make the contract in controversy; and, secondly, if there were such recognition, it was of authority in the architect touching the very transaction in dispute. Hence Duryea v. Vosburg, 121 N. Y. 57, 24 N. E. Rep. 308, is not in point; for in that case the attempt was to establish agency in one transaction, by proof of agency in another and different transaction. Page 65, 121 N. Y., and page 310, 24 N. E. Rep.

The exception to the exclusion of certain evidence on cross-examination is also invalid for two reasons: First. The plaintiff was then presenting its case, and, even were the offered evidence competent, it was discretionary with the court whether to receive it at that moment or to reserve its admission as properly part of defendant’s proof. Neil v. Thorn, 88 N. Y. 270. Secondly. The substance of the excluded testimony was subsequently brought out by appellant.

Appellant’s other principal exception is as untenable as the former ones, for evidence that the witness had tiling work done in other buildings was clearly competent for the purpose for which it was received, namely, his capacity as an expert to speak to the value of laying tiles. In the remaining exceptions we see no error prejudicial to appellant. The judgment and order appealed from must be affirmed, with costs.

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Bluebook (online)

12 N.Y.S. 927, 35 N.Y. St. Rep. 579, 1891 N.Y. Misc. LEXIS 901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-encaustic-tiling-co-v-reich-nyctcompl-1891.

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