
    JAMES S. CARRADINE, Respondent, v. HORACE L. HOTCHKISS, et al., Appellants.
    
      Evidence, irrelevancy and incompetency of, instances—Ordering a party to read in evidence paper produced by adversary on his call—Exception to exclusion of document cannot be entertained on appeal, if document does not appear in appeal book.
    
    
      Instances of irrelevancy and incompetency. The question at issue being as to the kind of order giren November 16th, respecting transactions in stock, Reid, 1. Defendants’ agent having testified to previous orders and claimed them to be of a kind different from that of November 16th, that the exclusion of further evidence by another witness as to previous orders, was correct, as not tending to show that the order of November 16th, was of the kind claimed by defendants. 2. The question put by the defendants to a witness, not a party to the action, “Do you know whether he (the plaintiff) had acted upon your suggestion about this very stock or not?” was properly overruled, because it did not appear to be relevant, and if answered in conformity with defendants’ purpose, would have been only a source of confusion to the jury. 3. The question put to defendants’ agent, on his recall as a witness, asking whether in interviews had by him with plaintiff after November 16th, plaintiff said anything about canceling any discretionary order, was properly overruled, as the witness had before testified fully to what occurred at the interviews referred to in the question.
    
      Ordering a paper to be read. Defendants’ counsel examined the defendant orally as to the contents of a letter sent by him to the plaintiff. On the cross-examination plaintiff's counsel offered the letter in evidence, and defendants’ counsel objected on the ground that the contents of the letter were immaterial and irrelevant, and the objection was sustained ; afterwards defendants’ counsel, on the cross-examination of the plaintiff, drew out a conversation in which the plaintiff referred to the letter, and stated that his attorney had it, and that in it defendants’ agent had stated that stocks were going up; whereupon defendants’ counsel called for the production of the letter by plaintiff. It was on such call produced, and defendants’ counsel perused it. Plaintiff’s counsel demanded that defendants’ counsel should be directed to read the letter in evidence; the court against the objection of defendants’ counsel, made the direction, and the letter was then read in evidence by defendants’ counsel, it containing material evidence, though not favorable to the defendants. Held, that, without considering the law on the subject in general, the action of the court was, under the particular circumstances, correct.
    
      Exception to exclusion of document not printed. Where a written memorandum is excluded on the trial, an exception to the exclusion cannot bo entertained on appeal, unless the memorandum is set forth in the appeal book.
    Before Sedgwick, Cli. J., Freedmax and Ixgeahaií, JJ.
    
      Decided January 8, 1888.
    Appeal by defendants from judgment entered on verdict for plaintiff, and from order denying motion for a new trial made upon the minutes.
    The facts sufficiently appear in the opinion.
    
      T. Henry Dewey, attorney and of counsel, for appellants, on the question of error in ordering the appellants to send a certain letter in evidence argued :
    I. (a) The rule that the calling for the production of papers and inspecting them, makes them evidence does not obtain in the state of New York, and has been 0 so decided by the General Term of this court. Abbott's Trial Brief, 89; Kenny v. Van Horne, 1 Johns. 394; Stalker v. Gaunt, 12 N. Y., Leg. Obs. 124. (b) There are several decisions in England and other states sustaining the same view. Sayer v. Kitchen, 1 Esp. 210 ; Carr v. Gale, 3 Woodb. & M. 38; Austin v. Thompson, 45 N. H, 113; Withers v. Gillespie, 7 S. & R. 14; 2 Phillips Ev. 537; 1 Greenleaf Ev., § 563. Some of the text writers disapprove of the English rule on principle. 2 Phillips Ev., 537; 1 Greenleaf Ev., § 536, note 3. (c) It is stated that the rule in England is the other way. Stalker v. Gaunt, 12 N. Y. Leg. Obs. 124; Calvert v. Flower. 7 C. & P. 386; Wharam v. Rutledge, 5 Esp. 239; Wilson v. Bowie, 1 C. & P. 10; 
      Stephens Dig. Ev. Art., 138; 2 Tidd’s Pr., 804; 1 Greenleaf Evidence, § 563; 2 Phillips Evidence, 537, n. 460; 1 Starkie Evidence, 403; Roscoe Evidence, 6. But even there the practice is not uniform nor are the decisions clear and satisfactory. Sayer v. Kitchen, 1 Exp. 210. See criticism on the supposed English rule in Austin v. Thompson, 45 N. H. 117. (d) In the Federal courts the practice is not uniform, but the weight of authority, it is submitted, is in favor of the New York rule. Carr v. Gale, 5 Woodb. & M. 59; Coote v. Bank U. S., 3 Cranch C. C. 350; Waller v. Stewart, 4 Ib. 532; Jordan v. Wilkins, 2 Wash. C. C. 482, 484. (e) In Maine, Delaware, Massachusetts, Georgia and Mississippi, the English rule seems to have been followed. Blake v. Russ, 33 Me. 360; Randall v Chesapeake & Delaware Canal Co., 1 Harr. 233, 284; Clark v. Fletcher, 1 Allen, 53, 54; Long v. Drew, 114 Mass. 77; Wooten v. Nall, 18 Geo. 609; Anderson v. Root, 8 S. & M. 362.
    II. (a) The substance of the letter was utterly irrelevant to the matter in controversy. It was dated November 15th, and had no relation whatever to what transpired on the 16tli. That it was irrelevant had been expressly decided by the court. The plaintiff had before attempted to get this very letter in, but it had been ' ruled out as irrelevant and immaterial, (b) Whatever may be the rule as to the right of the party producing a paper upon notice, to offer it in evidence, or to require the party calling for it after an inspection, to put it in evidence, it has never been claimed that evidence which is utterly immaterial, could be, or be required to be put in. Abbot’s Trial Brief, 89; Wilson v. Bowie, 1. C. & P. 10; Hylton’s Lessee v. Brown, 1 Wash. C. C. Rep. 343 ; 2 Phillips Evidence (ed. 1859), 537 ; Withers v. Gillespy, 7 S. & R. 14, n. 460.
    III. It is to be observed that in none of these cases was it ever claimed that an attorney calling for and inspecting a paper might be ordered to read it to the jury, or that such an order ever was made. The most that was claimed or decided was that the paper was thereby made evidence for the other side, if he chose to use it. This was well expressed in Clark v. Fletcher, 1 Allen 63 ; 2 Phillips Ev. 537, says: “It has been held that if the party who has called for the books, inspects them, he thereby makes them evidence for the other side, although he has not himself used them in evidence. But the principle of this rule is not clear; and it seems questionable, whether the rule does not go too far.”
    IV. The rule contended for does not apply to a paper incidentally produced on a trial. Withers v. Gillespy, 7 Serg. & Rawle 14; 2 Phillips on Evidence (ed. 1859) 537, n. 460; Austin v. Thompson, 45 N. H. 118.
    Y. The inspection of this paper disclosed the fact that it had been previously ruled out as irrelevant and immaterial, and it would be harsh and absurd to make the paper, under such circumstances, evidence. In fact, this should properly take the case out of the discussion at all, because there was really no inspection of the letter, within the meaning of the rule. Phillips (ed. 1859), 337, n. 460, in discussing the conflict in the cases says: “ It will be seen from the foregoing cases, that the only appearance of conflict has been as to whether the act of perusing or inspecting the paper would lay the party calling for it, pursuant to notice, under the obligation of considering it evidence. That merely calling for the paper is not enough to produce such consequences, seems agreed.”
    YI. This letter was very injurious to the defendants.
    
      Knox & Morrison, attorneys, and Samuel G. Jelliffe of counsel, for respondent, on the question of error in ordering appellants to read a certain letter in evidence, argued:
    “When a party calls for a document which he has given the other party notice to produce, and such document is produced to and inspected by the party calling for its production, he is bound to give it as evidence, if the party producing it requires him to do so, and if it is or is deemed to be relevant.” Mead v. Shea, 92 N. Y. 126 ; Day v. Roth, 18 Ib. 451. (These appear to be wrong citations.—Reporters.)
    
   By the Court.—Sedgwick, Ch. J.

The first exception argued by the learned counsel for the appellants, is to the exclusion of a question by defendants’ counsel, put to the witness, Lord : “ Do you remember the occasion when a conversation took place between the plaintiff and one of the defendants when Richmond Terminal Stock was about 45 ?

The important issue in the case was whether the plaintiff had given on November 16th a discretionary order to the defendants, to deal in the stock for the plaintiff as they saw fit. .

The counsel for defendants declared that the question was asked to prove that there had been a “previous fine of discretionary employment and agency.” This sufficiently shows that the question was not aimed at an interview of November 16tli. This is also shown by the price alluded to in the question, for on the 16th of November the stock was not about 45.

The learned judge was correct in holding that further evidence as to the orders given before the 16th of November would not tend to show that the order of the 16th of ¡November was of the kind claimed by defendants. The-defendants’ agent, Blanchard, had testified to the previous order, and had claimed them to he of a kind different from that of the 16th of November. The only discretion of those orders was to select a price about 45.

The next exception was to the exclusion by the court of a question asked of a witness, not a party to the action, “ Do you know whether he had acted upon your suggestion about this very stock or not?” The exclusion was correct. The time pointed at by the question, included transactions foreign to the issue. In the absence of testimony as to the nature of the suggestion, the question did not appear to be relevant. If the question were asked and answered in conformity with the purpose of defendants, the answer would have been, “Yes,” and this would have been only a source of confusion to the jury.

Blanchard, defendants’ agent, was examined as a witness and recalled. Then he was asked, “ At any one of the interviews that you had with Dr. Carradine, on and after the 16th day of November, did he say anything about canceling any discretionary order which he had given you ? ” etc. The object of the question, as avowed on the appeal, was to show a tacit recognition of the discretionary order, by his omission to speak of it. The answer would have involved only an inference or argument, which the jury might have made as well, because the witness in his earlier examination had fully testified to the contents of all the interviews referred to in the question.

The next exception refers to the court ordering the defendants’ counsel to read a letter written by the agent of the defendants in the transaction, and which the defendants’ counsel had then called upon plaintiff’s counsel to produce, which had been then produced and perused by defendants’ counsel, but not offered in evidence.

Without considering the law on this subject in general, I am convinced that the particular circumstances show that the court’s action was correct.

In the first instance, the defendants had taken advantage of what they pretended were the contents of the letter, by examining the writer of it, orally, as to those contents. He testified as follows: “ On the Í5th I sent a note to the plaintiff’s residence, saying to him that the day before I had heard that Richmond Terminal stock was to be put considerably higher, by the pool manipulating it, and advised him in this note to buy in his short stock, which he was short of, and put it out higher.” On cross-examination,- the counsel for the plaintiff offered this letter in evidence. The defendants’ counsel objected, on the ground that the contents of the letter were -immaterial and irrelevant. The court sustained the objection.

Afterwards the plaintiff was examined as a witness. The defendants’ counsel, on cross-examination, drew out a conversation in which the Avitness had referred to the letter, and that his attorney had it, and that in it the defendants’ agent had written that stocks were going up. The defendants’ counsel called for the letter and perused it, and against his objection,.was directed to read it as evidence, upon plaintiff’s counsel demanding that he should be so directed.

The defendants’ counsel had twice given oral evidence of the contents. He had learned the contents of the letter when he had objected to them as immaterial and irrelevant. That objection he, in substance, withdrew when he called for the oral contents from the plaintiff as a witness. Therefore when he demanded a production of the letter and took possession of it, he then placed himself upon the ground that the letter did contain material testimony. And in fact it did, although not favorable to the defendants. In my opinion, he could not withdraw from the ground he had taken, and was properly directed to give the primary evidence of what he had already given secondary evidence of. At all events, the defendants should not be permitted iioav to say that competent testimony as to their admission, contained in their own letter, was injurious to them as tending to prove what in reality were the facts of the case.

If the exception to the refusal of the court to allow the defendants to give in testimony, a memorandum Avhich they contended was of a discretionary order, were valid at the time, it cannot now be sustained on the case as made. For the contents of the memorandum do not appear. It cannot be affirmed that they directed a discretionary order, and the appellate court cannot say that the appellant was aggrieved.

The judgment and the order appealed from should be affirmed with costs.

Freedman, J., concurred.

Ingraham, J.,

concurring in result.—I think that the letter of November 15, 1886, was competent evidence, and that it was immaterial whether introduced by the defendants or plaintiff. I therefore concur to affirm the judgment.  