
    FRANCIS DAINESE, Plaintiff and Appellant, v. RICHARD H. ALLEN and ANTHONY B. ALLEN.
    I. Reeebees, Decision by.—Review oe.—Necessaby steps eob.— Peactice.
    1. Decision on matters of. Icm, arising on the trial, made during the trial and befoi'e the report, to which proper exceptions were taken on the trial, are reviewable without any exceptions being taken to the findings of law contained in the report.
    
      a. This, although the finding of law may involve and determine similar propositions.
    
      2. Findings of fact contained in a referee’s report (when reviewable at all) can be reviewed without any exceptions having been taken to them.
    3. Findings of law can be reviewed only on exceptions properly taken thereto. '
    
      a. If such exceptions have been taken, the propositions of law laid down in the findings may be reviewed although the appeal book contains'none of the evidence.
    
    1. In such cases the question is whether on the findings of fact contained in the report the conclusion of law is correct.
    II. Evidence.—Lettebs.
    1. Admissibility of letters without producing those sto which, they are answers.
    
    
      a. Letters written by a party containing declarations, or admissions • are admissible without the production of those to which they are answers, PBOVIDEO they relate to a controverted question in the case, and thus become material, but they are not admissible if irrelevant. - .
    
      Before Barbour, Ch. J., Freedman and Sedgwick, JJ.
    
      Decided May 31, 1873.
    2. Duty of counsel offering letters to point out their materiality.
    
    
      a. He has no right to introduce packages of letters without reading them or any of them, or otherwise showing their materiality by a reference as to their essential part.
    3. Matting of letters.
    
    
      a. One cannot be affected by the contents of a letter of which he has no notice or knowledge. To affect him by its contents, the letter must at least be shown to have been properly mailed and forwarded to his address.
    3H. Appeal.
    1. Directed Evidence.—Bdemncy of.—When not inquired into on appeal,
    
    
      a. When the proposed evidence or its substance does not appear in the case.
    2. Presumption infamor of judgment below.
    
    
      a. Every reasonable intendment on questions of lam, as well as of fact, is to be made in support of the judgment.
    1. The onus of establishing error rests on the appellant.
    ' 3. Incompetent and improper evidence, when not canisefor reversal.
    
    1. When it has not and could not have harmed the appellant.
    1. Principle applied.
    Appeal from judgment.
    Statement.
    In the latter part of the year 1863 and the former part of 1864, the plaintiff was engaged in business in Alexandria, Egypt; the defendants were in business in the city of Hew York.
    The plaintiff had two agents in America, William C. Zantzinger, of Washington, and John Hopper, of Hew York. Through these agents, and by direct correspondence, there was much negotiation between the parties to this action.
    The action was commenced in the year 1866, to recover 6,867.65 dollars, alleged to he an amount overpaid the defendants "by plaintiffs agents. The plaintiff claimed, (1.) that he had instructed Zantzinger to ship certain goods to him in Egypt, at fixed prices (3.) that defendants knew the limits, and filled the order at higher prices; (3.) that defendants had shipped with his goods certain goods on their own account, upon which he should be entitled to a credit; and (4.) that certain ice shipped was ordered "by plaintiff on condition that it arrived in Egypt "by a certain date, and that it was shipped too late to arrive at such time.
    The defendants claimed—(1.) That there was no fixed limitation as to price. (3.) That no notice was "brought home to the defendants of any limitation as to kind or price. (3.) That they had not "been overpaid. (4.) That the shipment of ice was duly authorized, and that they had shipped upon the orders of Hopper to Dainese goods to the value of $38,737.85, and upon their own account, of $814.73, upon which they had "been paid $30,400.15 ; and set up counter-claim for the "balance due, $9,098.33 and interest, and for the value of the invoice forwarded on their own account, amounting to-$814.75,y which was not accounted for.
    The action having "been referred, the referee decided all the matters of fact in defendants’ favor, dismissed plaintiff’s complaint, to which dismissal no exception-was talcen, and gave judgment in defendants’ favor for the amount of $13,067.76, "being the amount unpaid of the invoice forwarded to the plaintiff by Hopper’s orders, and $167.35, the value of a cotton gin from the invoice of $614.75, forwarded on defendants’ account, leaving out of consideration the remainder of that invoice.
    
      No exceptions to the findings of fad or of law were tahen to this report by either side.
    
    
      ' The plaintiff appealed and claimed a reversal of the judgment on the ground of alleged erroneous rulings of the referee on questions of evidence, which had been duly excepted to; the facts on which the ruling was made appear in the opinion.
    
      Samuel Huntington, attorney and of counsel for appellant, urged, among other things: The referee erred in excluding the letters written by the 'defendants to plaintiff’s agent, Zantzinger.
    The reason of their exclusion was, that the letters to which they were replies were not produced.
    1. It did not appear that there were any such letters. The letters offered were not read or examined by the referee. He, therefore, could not know that they were replies to any letters.
    2. But, if we concede that there were such letters, the ruling of the referee was wrong.
    Letters written by a party are evidence against him without producing those to which they are answers (Lord Barrymore n. Taylor, 1 Bsp. 326; Starlde on Bkidence, ,581).
    If there are cases holding a different doctrine, it is submitted that they must rest on special circumstances. For example, if a letter should so refer to a prior letter as without it to be unintelligible, it would be, by itself, immaterial to any issue, and of course inadmissible as evidence.
    
      Eaton, Tailer, and Cadwalader, attorneys, and John L. Cadwalader, of counsel for respondents, urged:
    1. That the fact that none of the letters are printed in the case, makes the exception of no avail.
    That counsel have not the right to introduce packages of papers in evidence without reading any of them— without calling the attention of the referee to any part —particularly where by his ruling the referee notifies the counsel of these facts; and also where it is plain from the purpose for which the correspondence was offered, that much of it, if not all, must he immaterial.
    That where it is intended to infer a state of facts from the general tone of a correspondence, and where counsel are unahle to point out any passage on which in particular he" relies, then something more than one-half a correspondence, and some letters which aré answers to others, must he produced.
    2d. Among the facts (not excepted to), it is found that the plaintiff displaced Zantzinger hy Hopper, to whom he gave a carte hlanche, and who made the whole shipment for the plaintiff at these prices.
    This is referred to in particular, to show that, even if the exceptions of the plaintiff in regard to certain letters, etc., are good, the plaintiff was not harmed, and the judgment should not be reversed.
    
   By the Court.—Freedman, J.

Section 272 of the Code provides : ‘ ‘ The trial hy referees shall he conducted in the same manner, and on similar notice as a trial hy the court. . . . They must state the facts found and the conclusions of law separately, and their decision must he given, and may he excepted to and reviewed in like manner, and with like effect in all respects as in cases of appeal under section 268; and they may, in like, manner, settle a case or exceptions. The report of the referees upon the whole issue shall stand as the decision of the court, and judgment may he entered thereon in the same manner as if the action had heen tried hy the court.”

Section 268 thus referred to, and which relates to a trial hy the court without a jury, further prescribes that, “for the purposes off an appeal, either party may except to a decision on a matter of law, arising upon such trial within ten days after notice in writing of the judgment, in the same manner and with the same effect as upon a trial hy jury. . . . And either party desiring a review upon the evidence appearing on the trial, either of the q uestions of fact or of law, may, at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a case or exceptions in like manner as upon a trial by jury, except that the judge, in settling the case, must briefly specify the facts found by him, and his conclusions of law. But the questions, whether of fact or of law, arising upon the trial, can only be reviewed in the manner prescribed by this section—the questions of law in every stage of the appeal, and the questions of fact upon the appeal to the General Term of the same court, as prescribed by section 348.”

Under section 348, an appeal upon the law may be taken to the General Term, from a judgment entered upon the report of referees, or the direction of a single judge of the same court in all cases, and upon the fact when the trial is by the court or referees.

It is apparent, as well from the language of section 268, as from its history and subject-matter, that two classes of exceptions are contemplated by its provisions. The first clause of the section provides, that either party may except to a decision on a matter of law arising on the trial within ten days after notice of the judgment. This clause could not have been intended, and it has never been construed so as to authorize a party to except to .a decision made on the trial in relation to the reception or rejection of evidence, or to take any exception which he might, and, according to the ordinary course of practice, would have been required to take on the trial. And yet such exceptions come within the letter of the section—they relate to “ matters” or questions of law arising on the trial. It is clear, however, that they were not intended by the language of this clause, and that, as to such exceptions, the party, for all purposes of an appeal, is limited to those taken on the trial (Brewer v. Isish, 12 How. 482).

Consequently, after trial the first step will be to except, within the time limited, to the legal points and propositions involved in the final decision rendered against the party intending to appeal. The next proceeding will be to prepare a case and have it settled. This is necessary for the purposes of a review in whichever mode the cause has been tried. It generally contains the evidence bearing upon the conclusions of fact intended to be reviewed ; the exceptions taken during the trial as well as those taken after the trial to the final decision, and a separate statement of facts found, and conclusions of law (Johnson v. Whitlock, 13 N. Y. 348).

Where the case, as settled, contains no exception, either to the final decision or to any question of law decided ^during the trial, the court cannot on appeal review it.

But exceptions to conclusions of law may be reviewed, although the printed case does not contain any of the evidence. On such an appeal the question is: Has the judge or referee drawn a correct conclusion from established facts ? (Frost v. Smith, 7 Bosw. 108).

Findings of fact need no exception (Hatch v. Fogerty, 7 Robt. 488 ; Lefler v. Field, 50 Barb. 410 ; Mayor, etc., v. Erben, 24 How. 358; Magie v. Baker, 14 N. Y. 438).

And when a party relies exclusively upon erroneous decisions made during the trial, it is not necessary to make and serve formal exceptions to the conclusions of law or to the final decision (Cowen v. The village of West Troy, 43 Barb. 48 ; The Mayor etc., v. Erben, 24 How. 358).

Notwithstanding, therefore, the case before us contains no exception to the dismissal of the complaint or to the referee’s conclusions of law, we have no doubt of our power to review the rulings of the' referee upon the questions of evidence, which arose upon the trial and are presented by the exceptions taken at the time, and to reverse the judgment and grant a new trial, if it be found that the referee has erred in any of these particulars to the prejudice of the plaintiff.

The principal exceptions relate to the exclusion of certain letters. Plaintiff’s counsel offered in evidence, among other matters and in different forms, a part of the correspondence between the defendants and W. C. Zantzinger, and claimed its admission on the ground that, taken as a whole, it afforded proof that the authority of Zantzinger as the agent of the plaintiff was limited, and that the defendants knew of such limitation. STo particular parts of this correspondence were pointed out or referred to by plaintiff’s counsel, nor was the same read or examined by the referee; but it was insisted that by a general examination of these letters, certain admissions would be discovered from their general tenor. .

The defendants objected (1.) generally to the admissibility of the letters as evidence ; (2.) that as the purpose was to extract admissions from the letters generally, it could not fairly be done by introducing letters of considerable length without referring to any particular parts or passages as sustaining plaintiff’s view, and that no right existed to introduce papers, and insist that the defendants’ counsel and the referee should perform the labor of plaintiff’s counsel and discover the materiality of the testimony; and (3.) that as the avowed purpose was from a lengthy correspondence as a result of the whole, and not from any particular portion to establish that defendants knew the limitation, that this conclusion could not be drawn from a part or from one side of the correspondence ; that is, that as it required a careful examination to find the evidence of this knowledge, and as it only arose, as it were, from the flavor of the general correspondence, that it was but proper to introduce both sides.

The referee ruled with the defendants and excluded the letters. Plaintiff’s counsel then offered, for the same purpose and in the same manner, a part of the correspondence between the defendants and the plaintiff. This was also excluded.

Plaintiff’s counsel thereupon stated, that the deposition of plaintiff, already taken herein, would supply the contents of the letters which were not produced, and he offered the deposition, with the letters already produced, as constituting a complete correspondence, with secondary proof of a part thereof. After an examination of this question and of th'e admissibility of the letters written by the defendants, the referee ruled thereon as follows:

“ To prove admissions' by the defendants, the answers “ of Allens may be put in evidence, (1.) To all of those “letters from Dainese to themselves which are mentioned in the depositions, and also, (2.) Their answers “to letters written by Dainese to Zantzinger, and by “ Zantzinger communicated to them, as stated in Zant- “ zinger’s deposition,, and in Dainese’s deposition. “These letters to Zantzinger, communicated to defendants, are marked W. O. Z. 1-6. These letters from “Dainese to defendants are dated Jan. 25, April 19, “May 24, July 16, Aug. 16, 1864.”

A number of letters of the defendants to plaintiff dated March 23, April 5,15,16, March (or May) 4, May 14, June 1, 14, July 8, 27, March 2, 4, 23, 29, April 25, 26, 29, July 12, all in 1864, were thereupon offered under the ruling of the referee for the purpose of proving by their general tenor admissions on the part of the defendants, but which the plaintiff’s counsel states, in answer to a question from the referee, did not appear (except that dated March 2, 1864), to be specific answers to any of the letters mentioned in the referee’s last ruling. lío particular passages were pointed out to the referee, nor were the letters read by defendants’ connsel or examined by the referee. The letters were objected to by the defendants’ counsel as before, and were excluded, except that of March 2, which plaintiff’s counsel declined to put in evidence by itself.

Plaintiff’s counsel finally read a number of letters that had passed between plaintiff and Hopper, and between plaintiff and the defendants, and they were received in evidence together with other evidence of a documentary character.

How, it may well be that some, if not all, of the excluded letters were admissible. They certainly should have been received for what they were worth, if they had any bearing at all upon the points at issue. The declarations and admissions of a party are always admissible, and letters written by a party are evidence against him without the production of those to which they are answers, provided they relate to a controverted question in the case and thus become material. If irrelevant, however, they are to be excluded, and no counsel has a right to introduce whole packages of papers without reading them or any of them, or otherwise showing their materiality by a reference to their essential parts. When, therefore, the attention of plaintiff’s counsel was called to this point, he should have established their materiality, by pointing out the particular passages upon which he intended to rely. He did not choose so to do. Hor did he see fit to enlighten us upon this point. Hone of these letters are set forth in the printed case, and consequently we are unable to determine whether the rejected correspondence, or some part thereof, in point of fact contained what plaintiff’s counsel in the face of defendants’ denial claimed it did, The rule is, that the appellate court will not inquire into the relevancy of rejected evidence, unless such evidence or its substance appear in the case, but will assume that the judge or referee, who tried the cause, properly rejected it (Berry v. Mayhew, 1 Daly, 54).

On appeal every reasonable intendment, on questions of law as well as of fact, is to be made in support of the judgment, and the party who alleges error in the decision of a referee, or of a judge without a jury, holds the onus of establishing either that an erroneous legal conclusion has been deduced from the facts found, or that some error of law has been committed in the interlocutory proceedings by which such conclusion was reached (Mead, Admx. v. Bunn, 33 N. Y. 375; Heroy v. Kerr, 8 Bosw. 194 ; Richardson v. Dugan, 8 ib. 307 ; Hoyt v. Hoyt, 8 ib. 511; Lee Bank v. Satterlee, 1 Robt. 1; Juliand v. Watson, 43 N. Y. 577).

Plaintiff has not only failed to show any such error, but it even appears, from the unquestioned findings and conclusions of the referee, that plaintiff was not harmed by the exclusion of the letters in question. The referee has found upon the whole case, that before the shipment of goods took place the plaintiff displaced Zantzinger by Hopper; that plaintiff gave to the latter a general power and authority to purchase and forward the goods at such prices as he deemed advisable and proper; that the said power was without restriction or limitation, and fully authorized Hopper to act in the matter of the consignment to be made to the plaintiff, and in the selection of the persons who were to make it, as he thought proper; that Hopper consulted with the defendants, and was informed by them of what had been done in carrying out plaintiff’s order under Zantzinger’s instructions ; that Hopper approved of all that had been done, and instructed the defendants to complete the order ; that after that time Hopper superintended the execution of the order, and that the same was executed and the shipment made to his satisfaction.

The referee also found that the vessel, the Louisa Bruno, containing said goods, sailed from Hew York the 26th or 27th day of April, 1864, and arrived at Alexandria on or about the 13th day of J une, 1864, and that the plaintiff thereupon received all the goods contained in said vessel without objection, paid the amount agreed to be paid by the charter party of the said vessel, stored the goods, and treated the same as his own, and, so far as appears from the evidence herein, at that time made no complaint and expressed no dissatisfaction in regard to the same.

In the light of these facts, it is easy to see that the rejected correspondence, if admitted, would not have changed the result.

Plaintiff was also examined as to whether he wrote and sent certain letters to the defendants in 1864. He answered that he did, and gave the dates. Defendants’ counsel having received a notice to produce these, produced two and stated that he had no others. Plaintiff’s counsel then offered to read plaintiff’s statement taken on commission as to the contents of the missing letters, which was objected to and excluded. The purpose for which secondary proof of their contents was thus offered, was not stated. We think the evidence was properly excluded. In the absence of any clue to their materiality, these letters must be treated as the declarations of the plaintiff himself. But even if they were offered for the purpose of fastening a notice of some kind on the defendants, they were admissible only on proof showing at least that they were properly mailed and forwarded to defendants’ address (Crandall v. Clark, 7 Barb. 169). Ho such proof was given.

An exception was also taken to the reception of the deposition of Ferdinando Eusso; but it is clearly untenable, for the reason that all objections to the reading of the deposition appear to have been waived by stipulation before trial.

The other exceptions are not adverted to in the printed points, and, not having been discussed on the argument, they are waived.

It appearing, therefore, that no error has been committed to the prejudice of the plaintiff, the judgment appealed from must be affirmed, with costs.

Barbour, Oh. J., and Sedgwick, J., concurred.  