Lifchitz v. O'Brien

127 N.Y.S. 1091 | N.Y. App. Div. | 1911

Per Curiam :

The judgment in this case must be reversed for errors of the trial judge in excluding testimony sought to be elicited from the witness Marsell respecting conversations had by him with the defendant O’Brien in reference to procuring a loan upon the premises referred to in the complaint herein. While Marsell was an attorney and counselor at law and it would appear had represented the defendant O’Brien in certain transactions, his employment, so far as it related to procuring a loan for him from plaintiffs, was not as an attorney and counselor at law, but merely as an agent, and the communications had between them did not relate to professional employment. (Code Civ. Proc. § 835; Avery v. Lee, 117 App. Div. 244.) The conversations between these parties, if any such existed, were of vital importance in establishing the relation of principal and agent between O’Brien and Marsell, which relation it was necessary for plaintiff to establish in order to maintain this action against O’Brien. The error of the trial judge is emphasized in this case because he permitted the defendant O’Brien to deny that he had any conversation with the witness Marsell upon the subject, although that denial was somewhat qualified on cross-examination, while at the same time he refused to permit Marsell to testify to the fact of such conversations or the substance thereof.

The judgment and order of the Municipal Court should be reversed and a new trial ordered as to all of the appellants, costs to abide the event.

Jenks, P. J., Cabe, Woodwabd and High, JJ., concurred.

Judgment and order of the Municipal Court reversed and a new trial ordered as to all of the appellants, costs to abide the event.