
    William A. Copp, App’lt,v. Harry B. Hollins and another, Respt’s.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    1. Evidence—Assignment—Statements of assignor after the making OF THE ASSIGNMENT—INCOMPETENT.
    The plaintiff, as assignee of John 0. Eno, brought this action to recover a balance claimed to be due from the defendants as brokers of the assignor. Another account was opened with the defendants in which Amos F. Eno was interested. This account resulted in a loss. After the loss and before the making of the assignment, the defendants claim that by an agreement with Eno they had transferred the credit existing in his favor on the first account to the second account. A letter from Eno to the defendants and also a reply to the same written after the making of the assignment were allowed to be read in evidence. Held, that what the defendants may have said or written to Eno after the assignment could not, under any legal rule of evidence, be received for the purpose of affecting the plaintiff’s right to maintain this action.
    
      2. Same—Admission of erroneous evidence—Effect of.
    When erroneous evidence is received bearing in any material degree upon the point in controversy, it will necessarily lead to the reversal of the judgment that to any extent may be made dependent upon such evidence.
    Appeal from a judgment recovered before a referee, and, also, from an order making an additional allowance of costs.
    
      Robert P. Harlow, for appl’t; John R. Dos Passos, for resp’ts.
   Daniels, J.

The plaintiff, as the assignee of John C. Eno, brought this action to recover a balance of account amounting to the sum of $54,906.57. The account arose out of dealings in stocks carried on by the defendants, for the assignor, as brokers. Another account was opened in his name with the defendants, as brokers, for other dealings in which his brother, Amos F. Eno, was interested to the extent of one-fourth. This account resulted in a loss to the sum of $55,321.63, and after this loss was incurred, and before the assignment to the plaintiff, the defendants claimed that by an agreement with Eno, they had transferred the credit existing in his favor, to the second account, thereby paying so much of the second account as the credit was sufficient to pay, and still leaving a small balance in the defendant’s favor. Evidence was given to estabish this state of facts, which notwithstanding its contradiction by the plaintiff, and by the deposition of Eno, was sufficient to sustain the referee in his conclusion that the account assigned to the plaintiff had been settled, and extinguished in this manner.

But in the course of the evidence, a letter from Eno to the defendant, Harry B. Hollins, was allowed to be read, and, also, the reply to the letter, from Hollins to Eno, made on the 6th of November, 1884. This was after the assignment made by Eno to the plaintiff in the action, and the letter from the defendant, Harry B. Hollins, to Eno was objected to by the plaintiff, on the ground that the assigment to him was made on the third of November, while the letter was not written until the sixth, and that it was not evidence against him in the action. The referee overruled the objection, and permitted the letter to be read, to which the plaintiff’s counsel excepted. This letter was no otherwise important in the case than that it contained a denial of the claim, and, also, a statement stating to Eno that, “All your accounts were closed up in your order, so Eldridge tells me, and the balance due us, I wrote off to profit and loss.” ■

Eldridge was a clerk in the employment of the defendants in their business, and this statement tended to confirm the other evidence given on behalf of the defendants, that the settlement relied upon by way of defense presented the truth of the case concerning the account in controversy. It had a direct bearing upon the issue presented by the pleadings and the other evidence, and as it consisted of a statement made by one of the defendants in his own behalf to the assignor of the claim in suit after the assignment was made, it was not admissible as evidence against the plaintiff. What this defendant may have said, or what he may have written to Eno after the assignment, could not, under any legal rule of evidence, be received for the purpose of effecting the plaintiff’s right to maintain the action. He was entitled to have the defense proved by legal evidence, and this letter was not evidence of that description. It had a direct bearing upon the issuable point in the case, which was not so clearly made out in the defendant’s favor, certainly as to permit the conclusion to be drawn that this evidence was not injurious tq the plaintiff, and did not effect the result of the action. And where erroneous evidence is received bearing in any material degree upon the point in controversy, it will necessarily lead to the reversal of the judgment that to any extent may be made dependent upon such evidence. Foote v. Beecher, 78 N. Y., 155.

For the error involved in the allowance of this evidence to be given, the judgment should be reversed and new trial ordered, with costs to the appellant, to abide the event.

By the reversal of the judgment, the order making the additional allowance of costs will necessarily be vacated. And whether that is capable of being sustained or not upon the facts disclosed upon the hearing of the motion, it is not necessary now to consider.

The order, as well as the judgment, should be reversed, and the motion denied, without costs.

Van Brunt, P. J., and Brady, J., concur.  