213 A.D. 884 | N.Y. App. Div. | 1925
Judgment and order reversed upon the law and the facts, and a new trial granted, with costs to abide the event. We think the admission of plaintiff’s letter of September 28, 1922, was error. This letter was admitted by the learned trial justice “ not as proof of any facts stated in it, but merely as proof of the claim which the man says that he made on the repr. sentative of the defendant.” But the plaintiff had already testified that he had informed defendant’s secretary of just what he claimed. The letter was merely a self-serving declaration, and in a case depending upon the evidence of plaintiff as to an alleged oral agreement we think the letter was incompetent evidence, that it was prejudicial to defendant, and that the exception to its admission presents reversible error. (Steber v. Palm Knitting Co., Inc., 206 App. Div. 439; Alexopoulos Freres, Inc., v. Nemours Trading Corp., 205 id. 39.) We are also of opinion that the verdict sustaining plaintiff’s alleged new oral contract at variance with the existing written contract was contrary to the evidence. Kelly, P. J., Jaycox, Manning, Young and Kapper, JJ., concur.
