
    Emil Lederer, Respondent, v. Ettie Adler, Wolf Lazarus, Morris Lazarus and Harris Lazarus, Appellants.
    (Supreme Court, Appellate Term,
    March, 1905.)
    Conspiracy — Evidence — Declarations of co-conspirator — Inducing sale to irresponsible party.
    The declarations of a co-conspirator made after the completion of the criminal enterprise, relating to a past transaction, and accompanying no act done in furtherance of the common design, are incompetent against the other conspirators.
    The evidence in an action for conspiracy to defraud plaintiff’s assignors by inducing them to sell goods to a party who was financially irresponsible, considered and held insufficient to justify a verdict in favor of plaintiff.
    
      Appeal by the defendants from a judgment of the City . Court of the city of New York, entered in favor of the plaintiff upon the verdict of a jury, and from an order denying defendants’ motion for a new trial.
    Benjamin Reass, for appellants.
    Henry Kuntz (Sigmund Herkimer, of counsel), for respondent.
   Scott, J.

The proof, assuming that it proved everything plaintiff claims for it, does not satisfy the allegations of the complaint. The complaint alleges that the defendants therein named, to wit; Ettie Adler, and the defendants Lazarus, entered into a conspiracy to cheat and defraud plaintiff. .The evidence does not connect Ettie Adler with any conspiracy at all. If any one conspired it was Jacob Adler, and it was the question of his participation which was submitted to the jury. This variance does not perhaps affect the present judgment, but may become important if a new trial be had. That there must be a new trial I am satisfied. The allegation in general is that Jacob Adler and the defendant Lazarus, entered into a conspiracy to defraud plaintiff’s' assignors by inducing them to sell goods to Adler, who was irresponsible and who in fact purchased such goods for the defendants Lazarus. The transactions said to have been induced by this conspiracy were all concluded before March 5, 1904, and on that date the cause of action was assigned to this plaintiff. Whatever cause of action the plaintiff has, must have been complete on that day, and. consequently the criminal enterprise which he alleges and of which he complains must have been then completed. Jacob Adler, as it is said disappeared for a time, but on March fourteenth he visited plaintiff’s assignors and made certain declarations and confessions to them concerning the complicity of the defendants Lazarus with the alleged fraud. This evidence was clearly incompetent and having been properly objected to, its admission constitutes error for which the judgment must be reversed. It is of course well settled that after the fact of a conspiracy has been prima facie established the acts, admissions and declarations of any one of the conspirators done and made during the pendency of the criminal enterprise and in pursuance and furtherance thereof may be received in evidence against all the conspirators, but the declarations even of a coconspirator, made after the completion of the criminal enterprise, relating to a past transaction, and accompanying no act done in furtherance of the enterprise are incompetent against the other conspirators. N. Y. Guar. & Ind. Co. v. Gleason, 78 N. Y. 503, 514; People v. McQuade, 110 id. 284, 307. This evidence was most important and, perhaps, essential to the plaintiff’s recovery. Certainly without the evidence a verdict for defendants would have been justified.

Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.

Blanchard, J. (concurring).

This action is brought to recover damages for fraud and conspiracy, and as such was tried and submitted to the jury.

The trial resulted in a judgment in favor of the plaintiff. The testimony to support the cause of action briefly stated is as follows: Max Sayer, one of plaintiff’s assignors, called in behalf of the plaintiff, testified that he was a member of the firm of Sayer.& Harris; that the firm’s business was that of dealing in raw and dressed furs under the firm name of Sayer & Harris, at 165 Greene street. That prior to the 25th day of February, 1904, he knew the defendants .Wolf Lazarus, Morris Lazarus and Harris Lazarus. That Harris and Morris Lazarus were copartners in the business of manufacturing furs, and that Wolf Lazarus, who is their father, is in the same line. On February 25, 1904, he met Adler in his place of business; with Adler at that time was Otto Miarswa, and Adler asked him if he had some goods,, and the witness answered “ yes.” About two days after that » he saw Adler together with Lazarus Brothers at his place of business. Lazarus Brothers asked him if he, the witness, had some raw mink skins to sell; thereupon, the witness showed them the goods. The Lazarus Brothers looked over the minks together with the man whom they had brought with them, A. B. Berliner.

They said they would buy that lot of 367 minks, and they agreed upon a price, $2.35 apiece. Lazarus was satisfied with the price; he said, “ Well, you charge up those minks to Adler.” I said, “ Hr. Lazarus, I do not know Adler, I never saw him before, and I do not want to sell him those goods.” Lazarus said, “ Well, I buy those goods, and I will give you half a check, and whatever he buys I am good for.” He said, Any checks or notes he gives you we are good for, all the goods he makes up we buy of him, and we will secure your goods.” To which the witness answered, "If you say so, all right, it is all right.” Lazarus said, “ I will give you a check for a certain sum, $475, and the balance Adler will give you a note. We will he good for the money.”

The bill for the goods chosen on that day was about eight hundred and sixty-four ($864) dollars, and on that day the witness got by a check from Lazarus 'Brothers four hundred and forty-nine ($449) dollars. This check was given on the Van Norden Trust Company, and made payable to the firm of Sayer & Harris. Eor the balance they gave him a check of Jacob Adler for one hundred ($100) dollars, dated on the same day the goods were bought, February 25, 1904; the agreement was, that the check should be paid within twenty days; and they also gave a note signed by Jacob Adler for the sum of two hundred and eighty-seven ($287) dollars. Adler signed the note under the name of “ E. Adler;” he said that was his name, and gave the witness his card. He, Adler did not say that he was doing business in the name of his wife. The note was for two hundred and eighty-seven ($287) dollars and some cents. The note was identified by the witness; it was signed in the presence of Lazarus Brothers, and it was delivered to the witness at the same time it was made.

The goods purchased were delivered; after the goods were counted and packed in the box, Adler said, „ send them right over to E. Adler, and he, Adler, would send them to the dresser.

The first time after the 25th of February, 1904, that the witness saw any of the parties to that transaction was on the 3d day of March, 1904. On that .day the witness spoke to Wolf Lazarus. Wolf Lazarus came in and saw a lot of raw coon skins in the witness’ place. He then said, I will send in my man Adler to examine the goods.” Adler came in, looked over the lot of goods, and they made a bargain. Adler looked over the goods and said, All right, I will buy them.” The witness answered, I want cash for the goodshe said, “ Well, I can’t give you all cash, I tell you what I’ll do, Mr. Sayer, I will give you a hundred dollars in cash, and the balance I will give you a check for three hundred dollars, and that leaves two hundred and fifty dollars balance, and that is only a small amount.”

Before the deal was closed, the witness Sayer went up to Lazarus Brothers at 163 Mercer street, and had a conversation with Moe Lazarus. He said to Mr. Lazarus that Adler bought a lot of goods and wanted the goods delivered; that Adler had given him a check for three hundred dollars and he paid one hundred dollars in cash, and asked him, What do you think, shall I accept the check ? ” to which Moe Lazarus answered, “ Certainly, sell him all he wants; he is a great worker, and whatever he makes up we buy from him. You need not be. afraid, you can sell him anything he wants.” The witness Sayer then said, “ Well, Mr. Lazarus, I can’t afford to give him so much credit,” and Lazarus answered, “ Well, every cent you give him we are good for.” After he had this conversation with Lazarus, the witness went back to his shop and directed the delivery of the goods. The $300- check was not paid. Sayer deposited that check in the bank, but there was no money in the bank, and he never received any money on it. The $100 check which he had received in the first transaction he gave back to Adler, who gave him $100 in cash for the same.

This summary of the testimony is taken substantially from the respondent’s brief, and the record shows that it is stated in a form most favorable to the plaintiff. It clearly indicates that the goods were sold to one Jacob Adler (not a party to this action), and to the defendants Lazarus, and not to Adler alone. It also shows that the credit was not given to Adler at all, but to the Lazarus parties. It also very clearly indicates that the vendors Sayer and Harris knew that Adler was acting in the interest of the Lazarus defendants as their representative, and that they were to get from Adler all the goods delivered to him by Sayer and Harris. Upon the sales no credit whatever was given to Adler, for the vendors at all times dealt with the Lazarus parties as the responsible vendees. There is no evidence that any representations were made as to the financial responsibility or solvency of Adler, but on the contrary it appears that the vendors treated him as not financially responsible.

The facts proved present none of the essential features of a sale of goods on credit obtained through fraud and conspiracy. The vendors appear to have made the sales without any investigation of the financial responsibility of any of the vendees, and appear to have relied solely upon - the promise of the Lazarus parties that they would pay for the goods.

The plaintiff failed to prove his cause of action and the judgment and the order denying the defendants’ motion for a new trial should, therefore, he reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Gorman, J., concurs in result.

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