7 N.Y.S. 784 | N.Y. Sup. Ct. | 1889
This is an appeal by the defendant from a judgment in favor of the plaintiff upon the report of a referee appointed to hear and determine the action. The action was for lumber sold and delivered, and the defense-set up was an agreement to take wine in payment for the lumber. The referee has found all the facts in favor of the plaintiff, and refused to find the-facts desired by the defendant; and we find his report well sustained by the-evidence and the circumstances surrounding the transaction.
James Weston, one of the original plaintiffs, died after the commencement, of the action; and during the trial the counsel for the plaintiff offered in evidence a letter written by the defendant to James Weston in his life-time. The letter was received without objection. Upon his cross-examination the-defendant was asked what he meant by certain statements in that letter, and then his counsel asked him this question; “Question. Did you have any talk with Mr. Weston preceding the letter, or with Bulmer subsequently, which, caused you to write that letter?” The question was objected to as incompetent, and a violation of section 829 of the Code. The objection was sustained, and the counsel for the defendant excepted. The counsel for the defendant claims that ruling was erroneous, and requires a reversal of the judgment, but we cannot concur in that view. The counsel for the plaintiff had made no inquiry of the defendant respecting any transaction or communication be