
    Adolph Wimpfheimer et al., Respondents, v. Isaac Harris et al., Appellants.
    (Supreme Court, Appellate Term,
    January, 1909.)
    Trial — Reception and exclusion of evidence — Introduction, offer and order of proof — • Introduction — Calling for document and requesting inspection not equivalent to introduction.
    Where, in an action to recover the value of goods alleged to have been delivered to defendants under an alleged contract made through an agent of the plaintiffs, the authority of the agent was a material question, the reception in evidence, as an exhibit for defendants over their objection, of a contract between plaintiffs and their agent showing that the agency wias a limited one was prejudicial to defendants, and, in connection with the court’s refusal to permit defendants’ counsel to inspect the document produced at his request, unless they agreed to offer it in evidence, was error.
    Appeal by thellefendants from a judgment in favor of the plaintiffs rendered in the Municipal Court of the city of ¡N"ew York, fifth district, borough of Manhattan.
    Herbert H. Maas, for respondents.
    Max D. Steuer, for appellants.
   Guy, J.

This is an appeal from a judgment rendered in favor of the plaintiffs in an action brought to recover the value of five pieces of merchandise alleged by plaintiffs to have been delivered on memorandum to defendants, subject to the approval of the defendants, to be returned by them if not accepted and paid for.” The defendants set up a counterclaim alleging that defendants gave an order, which was accepted by plaintiffs, for 100 pieces of merchandise, of which the five pieces in question were a part delivery; that plaintiffs subsequently refused to perform the contract as to the remaining ninety-five pieces, whereby defendants suffered damage to an amount in excess of plaintiffs’ claim.

Plaintiffs deny acceptance of the order set forth in the counterclaim and allege that when the order was submitted to them it was rejected by them.

Defendants’ evidence was to the effect that the alleged contract was made through an agent of the plaintiffs, one Mr. Strauss, of the firm of Strauss & Sohlicting, and the question of the authority of said agent to bind the plaintiffs was one of the material questions involved in the case.

During the course of the trial defendants’ counsel called upon plaintiffs’ counsel to produce a certain written contract between the plaintiffs and the' firm of Strauss & Sohlicting. The contract was produced by plaintiffs’ counsel, when the court inquired whether defendants’ counsel intended to introduce it. Defendants’ counsel stated he wished to read the document before offering it. Plaintiffs’ counsel refused to deliver the document to defendants’ counsel unless he offered it in evidence. Defendants’ counsel asked permission to “ look through ” the document, and the court refused such permission. The record then states as follows: “ Plaintiffs’ counsel: I ask your Honor to have it marked in evidence, on the ground that it is called for by the other side, and having been produced in response to that call it is offered in evidence. The court: Mark it in evidence. Defendants’ counsel: I object to that as being incompetent, irrelevant and immaterial. [Objection overruled ; exception to defendants.] Paper referred to received in evidence, and marked 1 Defendants’ Exhibit G.’ ”

It is contended by respondents that even if this ruling of the court was erroneous it was not prejudicial to defendants, inasmuch as the agency had previously been established by competent proof; but though there had been evidence introduced by plaintiffs’ counsel as to the agency of Strauss & Schlicting, the extent of such agency was in dispute. The document admitted established a limited agency, providing that all sales made by the agents should first be submitted to plaintiffs with the name of the proposed purchaser and such proposed sale should not in any event be consummated unless the plaintiffs approved of the credit, risk and standing of the proposed purchaser. .The judgment rendered by the court shows that this evidence was conclusive in the mind of the court as against the defendant, it having been admitted and marked in evidence as defendants’ proof. The admission of such proof was, therefore, prejudicial to defendants’ interest, and, in connection with the court’s refusal to permit defendants’ counsel to inspect the document produced at his request unless they agreed to offer it in evidence, constituted reversible error. See Smith v. Rentz, 131 N. Y. 175.

Gildersleeve and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  