
    Joseph L. Stickney, Respondent, v. Thomas E. Ward, Appellant.
    (City Court of New York, General Term,
    July, 1897.)
    Admissions — Affidavit read on a motion.
    An affidavit made by the defendant and filed in the court on the hearing of a former motion made in the action, may be read upon its trial, as a declaration or admission of the defendant, and this although the defendant’s attention has not first keen called to the statement contained in the affidavit.
    Appeal, by defendant from judgment on verdict for plaintiff, and order denying new trial.
    Franklin Bien, for appellant.
    David Leventritt, for respondent.
   Van Wyck, Ch. J.

The plaintiff’s contention is that on July 1, 1895, he sold on the market through the defendant, who acted’ as his stock broker, 100 shares of a certain stock in two separate orders of fifty shares each; that as to one block of fifty shares, the defendant, on plaintiff’s order, subsequently purchased fifty shares to meet this sale, and his account with defendant was thereby closed as regards this block; but that as to the other block of fifty shares, he continued short of the market until July 15th, when he requested defendant to buy in fifty shares to cover that short sale, which he refused to do, and by reason, thereof, plaintiff lost the profit which he would have made, of .$2J5, for which this action is brought. The defendant contended that although he had rendered an account to plaintiff, showing sales of two blocks of stock of fifty shares'each on July 1st, that as a fact he had only sold one block, and that -plaintiff had not given him any order to sell any more on that day, and that the’ entry as to the other block was a , mistake made by defendant’s bookkeeper. The question for the jury to determine was whether plaintiff had, on July 1, 1895, given orders to sell two blocks of fifty shares each, or only as to one block, and their verdict with plaintiff’s contention that- he ordered him to sell two blocks is not against the evidence or weight of evidence. The appellant contends that an affidavit made by the defendant and filed in this court on the hearing of a former motion in this action, was improperly admitted in evidence against his objection. This was read, as a declaration or admission of the party defendant, and it was not error to admit it, although defendant’s attention had not first been called to his statement therein contained. Judgment and order affirmed, with costs.

McCarthy and Scotchman, JJ., concur.

Judgment and order affirmed, with costs.  