William R. Bergholz, Pl’ff and Resp’t, v. W. Howard Gilder and T. H. Powers Farr, Def’ts and App’lts.
(New York Common Pleas, General Term,
Filed June 27, 1889.)
Evidence—Admissibility of.
Letters by an employee of the defendant written to the plaintiff during the existence of a former transaction which had been closed and settled, are not admissible in evidence.
*746Appeal from a judgment of the general term of the city court of New York city, entered in accordance with the verdict of the jury, in favor of plaintiff, October 18, 1888, rendered at a trial term of the city court, and from an order denying a motion for a new trial.
The defendants are bankers and brokers doing business in New York city under the firm name of Gilder & Farr. They had in their employment one Edward D. 0. McKay, under a fixed salary.
In a previous transaction from the one in suit, in June, 1886, the plaintiff, who was a stranger to the defendants but was acquainted with McKay, placed in defendants’ hands a $1,000 bond of the Central Iowa Railroad Company, to be used as a margin for stocks, thereafter to be ordered to be bought and sold by McKay for plaintiff’s account.
In this transaction stocks were accordingly bought and sold for the account of plaintiff, as ordered by McKay, and at the end of about eleven months from the beginning of the account, that is on May 10, 1887, on one account stated there was found to have been made for the plaintiff $923.75 profits, which the plaintiff drew out, and closed the account receiving back from the defendants his original bond.
On May 27, 1887, the plaintiff again came to the office of defendants with a bond of $1,000 of the West Shore Railroad Company, which he left as a margin, with defendants, for the purchase of stocks on his account.
.Upon this authority, defendants received orders to buy and sell stocks on account of plaintiff from McKay, but on July 29, 1887, defendants wrote to plaintiff that his margin was impaired, and asking him to strengthen it—his account at that time showing a loss of about $600. Upon the receipt of the letter, plaintiff repudiated the account, and afterwards demanded back his bond, which defendants refused to give until he had first settled his indebtedness to them, which at that time amounted to $925.65, whereupon plaintiff instituted this suit in the city court for conversion. It appeared that during the former transaction, McKay had written two or more letters to the plaintiff, two of which were dated respectively September 22, 1886, and September 23, 1886. In these letters he earnestly urges plaintiff to buy stocks.
These two letters were offered in evidence by plaintiff, and under objections and exceptions of defendants, were admitted by the trial court. They were offered in evidence merely to show the relation of the plaintiff “to this witness, and to show the relations that existed between these parties.” Defendants objected to their admission “ as incompetent, irrelevant and immaterial, and on the ground that no proper foundation has been laid connecting this witness with the defendant’s firm and making him their agent for this purpose.”
*747The jury having found a verdict for plaintiff, and judgment having been entered thereon, an appeal was first taken to the general term of the city court, and that court having affirmed the judgment, this appeal is taken to the court of common pleas.
Hugh L. Qole, for def’ts and app’lts; Doherty, Durnin & Hendrick, for pl’ff and resp’t.
Per Curiam.
The letters of the witness McKay were irrelevant to the issues in the action. They related to, and were written during the existence of, a former transaction in the year 1886, which had been closed and settled.
Their introduction in the evidence against the objection of the defendant was error.
As we are unable to say that the minds of the jury were not affected by this evidence, to the prejudice of the defendant, there must be a new trial.
Judgment reversed, new trial ordered, with costs to abide the event.