190 A.D. 559 | N.Y. App. Div. | 1920
When this case was before this court upon defendant’s previous appeal from a judgment entered upon the verdict of a jury, we reversed the judgment and granted a new trial, “ for the reason that the learned trial justice erred in sustaining the objections to defendant’s testimony of his transactions and conversations with Armstrong, culminating at folio 180, and because in the absence of the books of the bankrupt corporation concerning which the alleged false statements were made, there was no legal proof of fraudulent representations.” (Taylor v. Manning, 185 App. Div. 897.) The error in excluding defendant’s evidence of his conversations with Judge Armstrong was repeated upon the new trial which resulted in the judgment now appealed from. These conversations were again excluded upon plaintiff’s objection that they were not in his presence. But the defendant, charged with fraud, was not so limited. He was entitled to relate to the jury all of the facts upon which he based his statements, without reference to whether the plaintiff was present or not. The alleged fraudulent representations were said to have been made in his conversations with Judge Armstrong and we cannot understand upon what theory the plaintiff objects to his evidence of what was done and said. It is true that on this
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Jenks, P. J., Rich, Blackmar and Jaycox, JJ., concur.
Judgment and order reversed and new trial granted, with costs to appellant to abide the event.