
    Thomas Palmer, Respondent, v. Arthur Schwarzenbach and Others, Appellants.
    First Department,
    December 4, 1914.
    Evidence — self-serving declaration — letter not in response to any previous communication — action to recover damages for refusal to transfer stock pursuant to agreement.
    In an action to recover damages alleged to have been caused by defendants’ refusal to perform then' agreement to transfer certain stock to the plaintiff, a letter written by plaintiff to the secretary of the corporation after he had left its employ, not in response to any previous communication, and long after the alleged transaction and when suit was contemplated, is a self-serving declaration, and, hence, incompetent and irrelevant.
    Appeal by the defendants, Arthur Schwarzenbach and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of February, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of February, 1914, denying the defendants’ motion for a new trial made upon the minutes.
    
      Henry W. Bridges of counsel [Kenneth C. Kirtland, attorney], for the appellants.
    
      Noah A. Stancliffe of counsel [Hardy, Stancliffe & Whitaker, attorneys], for the respondent.
   Clarke, J.:

The complaint alleged, for a first cause of action, that the defendants entered into an agreement with the plaintiff for a valuable consideration whereby each- agreed to sell to him ten shares of the stock of the A. E. Stephens Company; that plaintiff had duly performed all the conditions of said agreement on his part to be performed, but the defendants had failed, neglected and refused to perform their agreement, and by rea-, son thereof he has been damaged in the sum of $Y, 530.

For a second cause of action that the defendants agreed to sell to the plaintiff twenty shares of the capital stock of the said company; that he had performed, but that they had failed to do so, whereby he had been damaged in the sum of $5,020.

There was no dispute at the trial in regard to the agreement respecting the thirty shares of stock; the controversy was as to the second cause of action, the twenty shares of stock, and as to the value of the stock. There was no motion made to dismiss the complaint or for the direction of a verdict so that it is conceded that issues of fact were presented for the determination of the jury.

It was in evidence that the defendant Ingalls, the secretary of the A. E. Stephens Company, which had its principal place of business in the city of Binghamton, was also the president ol the Ingalls Stone Company which had its quarries at Bedford, Ind., where he lived; that that business called him away from Binghamton a great deal and that he had but a very slight active business interest in the Stephens Company. The plaintiff offered in evidence a letter addressed to Mr. Ingalls at Bedford, Ind., under date of October 7, 1911, after he had left the employ of the company, which was objected to as a self-serving declaration and as incompetent and irrelevant. It was received and defendants excepted. That letter, known as Exhibit 6, contained most damaging statements to the defense, if accepted as true, and the whole letter is clearly a self-serving declaration. It was not a response to any previous communication or letter, was written long after the alleged transaction, was written when suit was contemplated and was clearly inadmissible. To give a color of right to its introduction plaintiff introduced Mr. Ingalls’ answer under date of Bedford, Ind., October 9, 1911. This answer demonstrates the inadmissibility of plaintiff’s letter. Mr. Ingalls says: “Referring to your favor of Oct. 7th in reference to settlement with the Stephens Company, beg to say I am entirely unfamiliar with any phase of the case. I only know that you left the firm’s employ on Oct. 1st. I have had no information regarding a proposed settlement with you and am in no position to pass an intelligent opinion on the fairness, or otherwise, of the proposition made you by Stephens. I am sure we all want to treat you with absolute fairness to all concerned, but until I am in possession of additional facts and figures, I cannot give you an intelligent opinion on the subject.”

In Viele v. McLean (200 N. Y. 260) Chief Judge Cullen said: “It would be difficult to imagine a declaration more exclusively self-serving than that contained hi this statement. It was purely a narrative of a past transaction written nearly two years after the occurrence of that transaction, and was no part of a correspondence between the parties. The theory on which it was admitted in evidence seems to be that the defendant’s failure upon the receipt of the statement to deny its truth was in the nature of an admission. It is well settled that this is an erroneous view of the law.”

In King v. Hudson River Realty Company (210 N. Y. 467) Judge Chase said: “These letters were principally composed of self-serving declarations. They related largely to past transactions. * * * They did not, directly or indirectly, involve admissions by the defendant. The denunciations and assertions therein could not have been other than damaging to the defendant." They directly tended to divert the minds of the jury from the issues that were before it for determination. Their receipt was error. (Viele v. McLean, 200 N. Y. 260; Bank of British North America v. Delafield, 126 N. Y. 410.)”

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellants to abide event. Order to be settled on notice.  