Martin v. Paddelford

183 A.D. 354, 170 N.Y.S. 684, 1918 N.Y. App. Div. LEXIS 5089

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1918
• Status: Published

Opinions

H. T. Kellogg, J.:

The plaintiff, as the owner of nine separate claims for materials furnished and services rendered by various persons in connection with the performance by the defendants of a contract for highway improvement entered into by them with the State Highway Commission, brought this action, and recovered judgment thereupon. No question was made upon the trial as to the furnishing of the materials or the performance of the services. It was, however, in serious dispute whether any contracts for the materials and services were ever made with these defendants. The defendants contended that one McMahon, with whom the bargains were in nearly every instance made, was not their agent but an independent contractor, to whom they had sublet a portion of the highway improvement which they had engaged themselves to make. Upon this appeal reliance is chiefly placed by the defendants upon alleged errors of the trial court in his charge to the jury and in his rulings upon the admission of evidence.

A material error was committed by the court in charging the jury as follows: “When the defendants say that McMahon was a subcontractor, then they have the burden of proof in satisfying you that that is the fact.” If the court had said that the burden of proceeding with the proof had fallen upon the defendants, after it had been shown that the defendants' were the contractors who had engaged to build the road, and that the materials were furnished and the services rendered in connection with the road improvement, there doubtless would have been no error. The court, however, evidently had in. mind no such legal principle, for the burden spoken of was the burden of “ satisfying ” the jury. This was tantamount to saying that the defendants had the burden of establishing that no contracts were made with them by the plaintiff and his assignors. The erroneous instruction thus given was contained in the ina.im charge of the judge, and when excepted to was not withdrawn. The court was subsequently requested to charge that if the jury failed to find that McMahon was an agent of the defendants, plaintiff could not recover. To this request the court stated as follows: “ I charge that, except as I have already charged, if the defendants by their conduct and their attitude and their acts led these men to believe or to give credit because of principalship of the defendants * * Thus the court not merely failed to withdraw its main charge, but in effect reiterated it, evidently meaning by the instruction quoted that when the plaintiff had established an apparent agency the burden of proving lack of agency fell upon the defendants. The errors thus committed were not formal or technical, but quite substantial, and cannot be overlooked.

The court repeatedly overruled objections to offers of hearsay statements by McMahon that he was the agent of the defendants, and after such statements had been admitted refused to strike them from the record. When asked to charge that the declarations of McMahon that he was an agent were not sufficient to prove agency, the court attempted to correct its rulings by charging as follows: “ I go further than you request, Judge Stratton, and hold that they have got to find it outside of McMahon’s statements that there was an agency, and that his statements are not competent evidence until you find there was agency, and then only as an element or whatever it might show in reference to the amount due for work, labor and material furnished.” It does not seem to me that the errors committed in the admission of incompetent evidence were thus cured. The evidence was not stricken from the record, but was allowed to remain in, only to show, however, “ the amount due for work, labor and material furnished.” In the first place there was no contest over the amount thus due. In the second place the declarations of McMahon, as repeatedly given, formed no part of any bargain or any statement by him made as to the labor and material to be furnished. Thus the witness Guiles testified that after he made his bargain he asked McMahon who was going to do the paying, and “ he said Paddelford and King.” A motion to strike out this testimony was" denied, the court stating that the statements were “ not competent to prove agency * * * unless agency is established.” The fact that the conversation thus admitted contained not a word except declarations of agency by the agent was apparently overlooked. The witness Martin, after he had performed his contract, stated that he asked McMahon “ whose job it was and who done the paying, and he said Mr. Paddelford and Mr. King.” Again, a motion to strike out was denied, although the conversation dealt only with agency. The witness Victoria V. Martin testified only to the statement by McMahon that he was an agent. A motion to strike out was denied. The witness Guiles testified that she complained to McMahon that her husband did not get his pay, and he said “ he didn’t see why he shouldn't care, because Mr. Paddelford and King was paying.'' A motion to strike out was denied. It is conceivable that a conversation with an alleged agent in reference to the terms of a bargain or the manner of its performance might contain a declaration by him that he was an agent and yet be receivable under proper instructions, for such a conversation would contain both competent and incompetent evidence, and the two could not be separated. The court may have had such a conversation in mind when it made its comments and charge, but no such conversation was offered for admission. The admission of incompetent hearsay declarations certainly cannot be rendered harmless, when allowed to remain in the record, by judicial comment to the effect that they are receivable only to prove a fact, to which fact they have no relation whatsoever. Only the efimination of such proof, or an unqualified statement that it has no evidential value, which is tantamount to such efimination, can cure the error of its admission. Of course, there are cases where such errors might be ignored as trivial. Here errors were repeatedly made, and directly affected the one and only issue in the case. They may not be disregarded.

The judgment should be reversed and a new trial granted.

All concurred, except John M. Kellogg, P. J., dissenting, with an opinion in which Lyon, J., concurred.