
    EDWARD LYNCH, Survivor, Respondent, v. JOHN PYNE, Appellant.
    EVIDENCE.
    When the testimony of a party to the action at the trial is fully contradicted by his own letters, written at a time when the facts were fresher in his memory than at the time of .the trial, his testimony is entitled to no consideration (Boyd i>. Colt, 30 How. Pr. 384).
    
      The case presented (appeal from an order denying the defendant’s motion for a new trial on the judge’s minutes) is one where the court must pass upon the weight of conflicting evidence (Finch v. Parker, 49 JVC T. 1).
    Before Curtis, Ch. J., and Speir, J.
    
      Decided January 2, 1877.
    Appeal from an order denying the defendant’s motion for a new trial on the judge’s minutes.
    
      Geo. W. Curtis, for appellant.
    
      M. J. A. McCaffery, for respondent.
   By the Court.—Curtis, Ch. J.

The plaintiff sues to recover for work claimed to have been performed at the request of the defendant, and for plants and flowers furnished to the defendant, between January 3, 1870, and April SO, 1872.

The main question presented by the case is, whether the work was performed for the defendant, and the flowers and plants furnished to him or his wife at his request. The defendant and his wife lived with Mr. Cambreleng, during this period, in the house owned by the latter, and to which a conservatory and a garden were attached. Mr. Cambreleng, who was the father of the defendant’s wife, died June 34, 1872.

’ The plaintiff testifies that sometimes the defendant and his wife, and sometimes one or the other, ordered the flowers and plants in question, and that he charged them on his books to the defendant’s wife, and sent the bill to him, and that he called on the defendant with the bill on several occasions, but that he never promised to pay it personally.

The plaintiff called a witness who testified that he called on the defendant many times in relation to the bill, when he would sometimes say: “I can’t do anything to-day,” or would answer affirmatively when asked by witness if he should call again. But as the defendant was at this time the executor of Mr. Cambreleng’s estate, it may have been that he was answering in that capacity, especially as the plaintiff was seeking' to collect this same claim from that estate, and to its liability for which no question was raised. It appears that this estate was insolvent.

The defendant testified, that he did not order these plants or flowers, and that the only transaction he ever had with the plaintiff’s firm, was the purchase of a boquet, fifteen years previously, which he paid for; that he never authorized the trusting of his wife, or knew of it; that no bill was made ont to her until after her father’s death ; and that she attended to her father’s commissions, he being advanced in years, such as making purchases for the house; and that he had heard him direct her to go and order plants, but that he never knew her to do so except for her father. The defendant also testified that no bill was ever made out against him, and that when he first received the bill made out against his wife, he notified the plaintiff that it was improperly made out against her, and that it should be made out against Mr. Cambreleng.

In examining the testimony of the plaintiff (for it will be observed that the case rests chiefly upon the testimony of the two parties), there are some circumstances that do not tend to sustain the statements of the plaintiff at the trial. For instance, the defendant, on June 23, 1873, wrote plaintiff’s firm the following letter:

“Hew York, June 23, 1873.
“Messrs. Bridgemak & Co.
“Dear Sirs: I am not aware that any of the articles in your bill were ordered for me or on my credit. Your bills have always been made out, rendered to, and paid by Mr. Stephen Cambreleng, and were for work done in, and plants furnished to his garden and conservatory, No. 35 Great Jones street, which plants were appraised as part of his estate. There was a bill for these very articles rendered in Mr. Cambreleng’s lifetime, made out to him, as every bill ever rendered by you was made out to him, and the only account ever kept by you was with him. I shall resist firmly any attempt to make me liable for any goods or labor furnished or alleged to have been furnished by you to Mr. Cambreleng, or for his house and garden. Tour claim, if any, is against Mr. Cambreleng’s estate, and has been already made against his estate.
“Yours truly,
“J. Pyne.”

In answer to that note, the case admits that the plaintiff sent the following letter:

“New York, June 26, 1873.
“John Pyne, Esq.
‘ ‘ Dear Sir: You have mistaken the tenor of our note, in supposing that we expected to make you liable for the bill. Not at all. The bill is, as you say, against the estate of Mr. Stephen Cambreleng, and the reason why we wrote and sent to you, was for the reason that-knowing you to be one of the executors, you might be able to satisfy us in regard to the payment; as being very short at present, and having waited so long, we thought, that probably the estate was in such a condition now, as to admit of the payment of the bill. We hope you will consider us right in this matter, and as soon as the estate will be in a condition for payment, notify us, and you will greatly oblige
‘‘ Yours respectfully,
“Bridgeman & Co.”

This last communication appears to be an explicit disavowal of any claim against the defendant personally for the bill, and was written at a time when the facts were fresher than at the trial, in the memory of the plaintiff. This seems to bring the case within the principle, that where a party’s oath is flatly contradicted by his own letters written long previous to the commencement of the action, it is entitled to no consideration (Boyd v. Colt, 20 How. Pr. 384).

The next circumstance affecting the plaintiff’s testimony, arises from the affidavits made by him in the usual form, September 1, 1873 (two months and more after writing the last letter), to substantiate his claims upon the estate of Mr. Cambreleng. By these, he confirms under oath his statement in the letter, that this bill in controversy was a claim against the estate of Mr. Cambreleng. The plaintiff stated at the trial, that he knew the claim was against Mr. Pyne, and believed that he had no claim., against Mr. Cambreleng, none whatever, but that he made the affidavits at the defendant’ s request, and that he took the latter to be an honorable man, and that on his- statement that he would get some money, he felt justified in making the affidavits. ,

It is probably not the first time that a claim has been sworn to and presented against the estate of a deceased person from that motive, but I am not aware that any court has held it a justification for a knowingly false affidavit.

There are some other features in the case, that strengthen the defendant’s testimony, that the bill was Mr. Cambreleng’s, besides the letter and affidavits of plaintiff. It is conceded that, in July, 1871, Mr. Cambreleng’s note at ninety days for $330.90, being for a part of this bill, was taken by the plaintiff, and subsequently protested.

Plaintiff’s firm had attended to Mr. Cambreleng’s garden, and supplied plants for his house and conservatory for a long term of years, before the bills in question were incurred, and these latter were originally made out in his name. No charge appeared on the plaintiff’s books against the defendant personally.

The case presented is one where the court must pass upon the weight of conflicting evidence (Finch v. Parker, 49 N. Y. 1). The result of the examination is a conviction that the verdict of the jury cannot be sustained.

Under such circumstances the judgment must be reversed, and a new trial ordered with costs to abide the event.

Speir, J., concurred.  