Garnsey v. Rhodes

• Decision Date: 06 June 1893
• Citation: 34 N.E. 199,138 N.Y. 461
• Parties: GARNSEY v. RHODES.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 461

34 N.E. 199

GARNSEY

v.RHODES.

Court of Appeals of New York.

June 6, 1893.

Appeal from supreme court, general term, first department.

Action by Erasmus D. Garnsey against Joseph E. Rhodes to recover a balance due on a contract for the erection of a house, and for extra work. A judgment on the report of referee, dismissing the complaint on the merits, was reversed at general term, (18 N. Y. Supp. 484,) and defendant appeals. Affirmed.

Joseph J. Burr, for appellant.

Edward S. Clinch, for respondent.

MAYNARD, J.

The defendant has appealed from an order of the general term reversing a judgment in his favor entered upon the report of a referee, and granting a new trial. The order does not state that the reversal was upon the facts, and we are confined to a review of the questions presented by the numerous exceptions in the record, and the order must be affirmed if any material error of law appears to have been committed.

The action was upon a building contract, and the defendant was permitted to show, against the objection of the plaintiff, several conversations between him and one of the architects, in which he complained that the work had not been done in accordance with the requirements of the plans and specifications, and in which the architect admitted the default of the plaintiff in the respects pointed out by the defendant. One of the main issues litigated involved the question whether the plaintiff had substantially performed the stipulations of his contract, upon which the referee has found adversely to him, and this evidence had a direct and material bearing upon this branch of the controversy. The architect was in no sense the agent of the plaintiff, but was employed by and represented the defendant. The admission in evidence of the declarations of the defendant and his agents in his own favor was manifestly an infraction of an elementary rule of evidence, unless it is brought within some well-recognized exception. The defendant seeks to sustain it upon the ground that he alleged and proved, and the referee has found, that after the execution of the contract the architects, in collusion with the plaintiff, and without the knowledge or consent of the defendant, prepared other plans for the construction of a house essentially different from that called for by the contract, plans, and specifications signed by the parties, and of much less value, and alterations were made in the specifications to reduce the cost of the building, and that therefore the declarations of the architect were admissible in evidence against the plaintiff, because both were engaged as conspirators in the same scheme to defraud the defendant. But the rule regulating the admission of such proof is well settled and clearly defined, and is limited to cases where it is shown that two or more persons have combined for an illegal purpose, and the acts and declarations of one of them, sought to be proven against the others, were done or made in pursuance of the original concerted plan, and with reference to, and for the promotion of, the common object. 1 Phil. Ev. (5th Amer. Ed., Cow. & H.) 205-211; Dewey v. Moyer, 72 N. Y. 70;Indemnity Co. v. Gleason, 78 N. Y. 503. A mere statement, however, made by one conspirator, or any act of his not done in pursuance of the conspiracy, is not evidence for or against his associates. The only act of collusion in this case of which there was any proof, or which the referee has found, consisted in the substitution of different plans and specifications for those originally...