
    James S. Carradine, Resp’t, v. Horace Hotchkiss et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 27, 1890.)
    
    1. Evidence.—Documentary.
    The fact that a letter to plaintiff is produced by him. at the request of defendant's counsel does not justify the court in compelling the defendant to put the letter in evidence.
    2. Same.
    Shortly before the trial closed, the defendant’s counsel produced a paper which he identified from previous evidence as being made on the day the order for stock in question was given by plaintiff. The memorandum was not made in the presence of plaintiff, and the court excluded it. Held, no error; that as defendants had given their evidence upon this branch of the case, and rested, it was discretionary with the trial court as to whether it should again open the case to receive further evidence upon the subject.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment of that court entered upon the verdict of a jury.
    
      T Henry Dewey, for app’lts; Charles H. Kitchel, for resp’t.
    
      
       Affirming 13 N. Y. State Rep., 295.
    
   Haight, J.

This action was brought to recover damages by reason of the refusal of the defendants to deliver to the plaintiff 500 shares of stock known as St. Louis Common or Nickel Plate, which the defendants as brokers had purchased for and on account of the plaintiff. On the 23d day of November, 1886, the plaiutiff demanded of the defendants the delivery to him of the stock in question, at the same time tendering to them the sum of $3,418.23, which he claimed was the whole amount due on his account The defendants refused to deliver the stock, claiming that there was due them on the account the sum of $7,530.73. The only dispute between them arose out of a transaction in Richmond Terminal stock. On the 19th of November, prior to the demand to which we have already alluded, the defendants sold short on the plaintiff’s account 200 shares of Richmond Terminal stock at 58 7-8, 100 shares; at 60 and 100 shares at 63. This transaction resulted in a loss which constitutes the difference between the parties. The business was transacted on behalf of the defendants by one Frank E. Blanchard, their agent, who testified that the plaintiff authorized him to sell Richmond Terminal stock short and to buy the same in at his discretion when he thought the proper time had arrived, and that the sales were made under the discretion stigiven by the plaintiff. The plaintiff denied that he ever gave Blanchard such authority and repudiated the sales made on his account, and this was the only question tried.

"Upon the trial the plaintiff testified, in answer to questions by the defendants’ counsel, that Mr. Blanchard wrote him on Monday to the effect that the stocks were going up. This letter was produced on the request of the defendants’ counsel. Thereupon the plaintiff’s counsel demanded that the letter be put in evidence, the defendants having called for it and read it; the court ruled that the letter, having been called for by defendants’ counsel and inspected, should be put in evidence; the defendants’ counsel objected to putting it in and asked the judge if he ordered him to put it in; the court replied in the affirmative and thereupon defendants’ counsel took an exception to the ruling, and then, in -obedience to the direction of the court, read the letter to the jury-

Whatever may have been the ancient rule in England upon the subject, we do not understand that the ruling of the court can be sustained under any rule now existing in England or in this state. Gordon v. Secretan, 8 East., 548; Kenny v. Clarkson, 1 Johns., 385, 393; see note at end of the case; 2 Phillips on Ev., 537, note 460.

But we fail to see wherein the defendants were harmed or prejudiced by the reading of the letter. The letter was addressed to the plaintiff, dated November 15, 1886, and is as follows:

“Dear Sir—I asked Mr. Lord to see his friend who is manipulating Richmond Terminal stock. He saw him this morning and was told to buy the stock to-day and by no means sell it short. This information is from the party who has put the stock up, and I submit it to you to act upon-as you think best.

Very respectfully,

“F. E. Blanchard.”

The plaintiff had previously sold 600 shares Richmond Terminal stock short at 50, and, after the receipt of this letter he ordered Blanchard to buy in that amount, which was done, at 50 1-2. He also claimed to have given Blanchard an order to buy 600 shares more on the 15th, which appears to have been misunderstood by Blanchard, he only purchasing 600 to make good the amount that the plaintiff was short. The next day, the 16th, the plaintiff and Blanchard had an interview in reference to the purchase ordered the day before and of the failure of Blanchard to comply with the second order given. The stock had in the meantime gone up and the plaintiff expressed his displeasure and disappointment at Blanchard’s failure to comply with his order. It was at the close of this interview that Blanchard claims the discretionary order was given him to sell short when the proper time arrived. Blanchard, in delivering his direct testimony, stated that on the 15th he sent a letter to the plaintiff saying that he had. heard that Richmond Terminal stock was to be put considerably higher by the pool manipulating it. The plaintiff had also testified to the receipt of the letter from Blanchard, and that it was to the effect that the stocks were going up, so that the contents of that letter were previously made to appear by the testimony of both Blanchard and the plaintiff. It is true it contains the statement, not mentioned in the oral testimony, that “ I submit it to you to act upon as yon think best,” but of what importance or materiality is this statement as bearing upon the question tried ? It is suggested by one counsel that it tended to disprove the claim of Blanchard that he had a discretionary order, but this statement can have no such effect, for the letter was written on the 15th of November and the discretionary order testified to by Blanchard was given on the day following. So that there is nothing in the letter that is in conflict with the defendants’ theory of the case, or that could possibly prejudice him before the jury upon the question submitted for its determination.

Shortly before the trial closed the defendants’ counsel produced a paper which he identified from the testimony of Blanchard as a memorandum made at the Fifth Avenue Hotel on the afternoon of the day that the discretionary order was given by the plaintiff to Blanchard, and offered it in evidence. It was objected to by the plaintiff upon the ground that it was incompetent and should have been produced in the first place. In answer to a query by the court, it was conceded that the memorandum was not made in the presence of the plaintiff. Thereupon the court sustained the objection, and, we think, properly. The defendants had given their evidence upon this branch of the case and had rested. It was, consequently, discretionary with the trial court as to whether it should again open the case to receive further evidence upon this subject; but we do not understand the memorandum to be competent as evidence in chief. Blanchard had already testified to the conversation that took place between . himself and plaintiff at the time that he claimed the discretionary authority was given to him to purchase and sell the stocks on plaintiff’s account. He did not claim that there was any failure in his memory as to what was then said and done. If there had been a failure in memory on his part, and if he had made a memorandum of the conversation at the time, the trial court might have permitted him- to look at the memorandum for the purpose of refreshing his recollection and then to testify as to what was said and done by the parties.

We have examined the other exceptions appearing in the appeal book, but are of the opinion that they are correctly answered by the court at general term.

The judgment should be affirmed, with costa

All concur.  