
    (75 Hun, 416.)
    TRUESDELL v. CHUMAR.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    Evidence—Res Gestae.
    In an action against a stockholder to recover for wages of a laborer for the corporation, a statement made by the president of the corporation after the work was performed is not admissible as part of the res gestae, though counsel stated, at the time of offering it, that it was to show the nature of the employment, and an accounting between employer and employe.
    Action by Hiram Truesdell against Charles H. Chumar. Defendant moves for a new trial on exceptions taken at Wyoming circuit, and ordered to be heard at general term in the first instance. Granted.
    The action is against the defendant as a stockholder in the Eldridge Salt Company, a corporation created pursuant to chapter 40, Laws 1848, authorizing the formation of corporations for manufacturing, mining, mechanical, or chemical purposes, and the acts amendatory thereof. The complaint charges that one Andrew Johnson, having performed services as a laborer for the corporation, and not having been paid therefor, commenced an action against the corporation, and on April 26, 1892, recovered judgment against it for 8355.03 on account of such services; that execution thereon was returned unsatisfied; that the company is insolvent; that the defendant is stockholder to an amount exceeding such claim; that the whole amount of stock has not been paid in; and that the judgment has been assigned to the plaintiff, who is the owner of it.
    Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.
    J. L. Woodworth and I. Sam Johnson, for plaintiff.
    Charles H. Morgan, for defendant.
   BRADLEY, J.

The complaint alleges the elements of two grounds of liability of the defendant,—the one, the nonpayment in full of the amount of the capital stock of the corporation, as required by the statute, (Laws 1848, c. 40, § 10,) and the other that the money was due to the plaintiff’s assignor for his services as laborer for the corporation, (Id. § 18.) The defendant, by his answer, put in issue both alleged propositions, and the plaintiff proceeded at the trial with the view to recovery upon the latter ground. The defendant was a stockholder of the company to an amount exceeding that of the plaintiff’s alleged claim. The plaintiff was the assignee of a judgment which had been recovered by Andrew Johnson against the company, and execution thereon had been returned wholly unsatisfied. The question, therefore, was whether or not the company was indebted to Johnson for services rendered by him as a laborer, within the meaning of the statute; and such is the claim upon which the judgment was recovered by him. And upon that subject a witness on the part of the plaintiff testified that he knew Johnson; that, about the time the action was commenced by Johnson against the salt company he saw Daniel Eldridge and Johnson together; that Eldridge was then acting as president of the company; and that he heard a conversation between them in reference to the claim. He was then asked to state what it was. Objection was made to it “as incompetent to prove any issue or any fact raised by the pleadings.” “By the Court: You seek to show that Mr. Eldridge, acting as president, admitted to Mr. Johnson that he had employed him, and that that claim was owing to him by reason of that employment? By Plaintiff’s Counsel: Yes, sir; and that they looked over and made an accounting, and stated the amount between employer and employe. How, it is to show that amount and to show the nature of the employment that I offer this evidence. We propose to show what the contract was.” The objection-was overruled; and exception taken. The witness testified that Johnson was in the witness’ office, and, when Eldridge came in, said to him: “You owe me $230, and agreed to pay me $4 a day. I have worked there seventy days, and you have paid me only $50, and there is $230 due.” That Eldridge replied: “I know I agreed to pay you $4 a day, and I only paid you $50; and, if you had done as you agreed, it would have been that amount.” This interview was some time after Johnson had ceased to work for the company, and the conversation, merely as such, between him and Eldridge, was not competent evidence against the defendant. Nor is it seen that what was said of the purpose of the evidence before the ruling was made by the court tended to show that it was part of the res gestae, in a transaction between those persons in which Eldridge, as president of the company, was legitimately acting as .its representative. The offer, as a whole, did not purport to make the conversation a part of any transaction in the business of the company, nor did the evidence given tend to make it so. The exception was well taken. Thallhimer v. Brinckerhoff, 4 Wend. 394; Cortland Co. v. Herkimer Co., 44 N. Y. 22; Anderson v. Railroad Co., 54 N. Y. 334. The objection to the conversation remained, and, after the ruling, no inquiry was made whether they were engaged in any act of accounting, or by way of adjustment or settlement; but the question was repeated, what was the conversation? and the answer to it closed the examination of the witness on the part of the plaintiff. In Hoag v. Lamont, 16 Abb. Pr. (N. S.) 91, 60 N. Y. 96, the declarations proved, of the officer of the corporation, had relation to the contract out of which the liability in question there arose, were made at the time it was entered into, and constituted part of the transaction of making it. The judgment recovered by Johnson against the salt company was of itself no evidence, as against the defendant, of the alleged indebtedness of the company to him. Miller v. White, 50 N. Y. 137. For the error before mentioned in the reception of evidence, the motion for a new trial should be granted; costs to abide the event. All concur.  