
    Erasmus D. Garnsey, Resp’t, v. Joseph E. Rhodes, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 6, 1893.)
    
    1. Contract—Evidence.
    In an action upon a building contract, defendant was permitted to show, against the objection of plaintiff, several conversations between him and one of the architects who was employed by and represented defendant, in which he complained that the work had not been done in accordance with the requirements of the plans and specifications, and in which the architect admitted the default of the plaintiff in the respects pointed out by the defendant. Held, error.
    2. Same.
    Such evidence is not rendered admissible by the fact that the architect in collusion with plaintiff and without the knowledge or consent of defendant, prepared inferior plans and made alterations in the specifications to reduce the cost of the building.
    3. Same.
    The admission of such proof is limited to cases where it is shown that two or more persons have combined for an illegal purpose, and the acts and declarations of one of them, sought to be proven against the others, were done or made in pursuance of the original concerted plan and with reference to and for the promotion of the common object.
    4. Same.
    Where there is a paragraph in the contract which provides that if any dispute should arise respecting the true construction and meaning of the drawing or specifications it should be decided by the architects, and their decision should be final and conclusive, this does not render admissible complaints made by defendant to the architects in the absence of plaintiff and their statements in reply.
    5. Same.
    One K. was the principal witness for the defendant to establish the alleged conspiracy. He was at the time employed in the office of the architects, and testified to transactions between them and the plaintiff, tending to show the collusion which the referee found, a few months before he left their employ. Held, that it was competent for plaintiff to prove, if he could, that the witness was unfriendly to the architects.
    Appeal from order of supreme court, general term, first department, reversing judgment in favor of defendant and granting new trial before another referee.
    
      Joseph J. Burr, for app’lt; Edward S. Clinch, for resp’t.
    
      
       Affirming 45 St. Rep., 146.
    
   Maynard, J

The defendant has appealed from an order of the general term, reversing a judgment in his favor entered upon the report of a referee and granting a new trial. The order does not state that the reversal was upon the facts, and we are confined to a review of the questions presented by the numerous exceptions in the record, and the order must be affirmed if any material error of law appears to have been committed.

The action was upon a building contract, and the defendant was permitted to show, against the objection of the plaintiff, several conversations between him and one of the architects, in which he complained that the work had not been done in accordance with the requirements of the plans and specifications, and in which the architect admitted the default of the plaintiff in the respects pointed out by the defendant. One of the main issues litigated involved the question whether the plaintiff had substantially performed the stipulations of his contract; upon which the referee has found adversely to him, and this evidence had a direct and material bearing upon this branch of the controversy. The architect was in no sense the agent of the plaintiff; but was employed by and represented the defendant. The admission in evidence of the declarations of the defendant and his agents in his own favor was manifestly an infraction of an elementary rule of evidence, unless it is brought within some well-recognized exception.

The defendant seeks to sustain it upon the ground that he alleged and proved, and the referee has found, that after the execution of the contract the architects, in collusion with the plaintiff and without the knowledge or consent of the defendant, prepared other plans for the construction of a house essentially differenfc from that called for by the contract, plans and specifications signed by the parties, and of much less value, and alterations were: made in the specifications to reduce the cost of the building, and that, therefore, the declarations of the architect were admissible in evidence against the plaintiff, because both were engaged as conspirators in the same scheme to defrahd the defendant.

But the rule regulating the admission of such proof is well settled and clearly defined, and is limited to cases where it is-shown that two or more persons have combined for an illegal purpose, and the acts and declarations of one of them, sought to be proven against the others, were done or made in pursuance of the original concerted plan, and with reference'to and for the promotion of the common object. 1 Phillips on Ev., 5th Am. ed., C. & H., 205-211 ; Dewey v. Moyer, 72 N. Y., 70 ; N. Y. Guard. & Ind. Co. v. Gleason, 78 id., 503. A mere statement, however, made by one conspirator, or any act of his not done in pursuance of the conspiracy, is not evidence for or against his associates. The only act of collusion in this case of which there was any proof, or which the referee has found, consisted in the substitution of different plans and specifications for those originally agreed upon by the parties, and the conversations with the architect occurred several months after this had been done, and his admissions and declarations had no reference to the conspiracy, and were not of a character designed to promote its successful accomplishment. It is urged that it was a part of the unlawful scheme to keep the defendant in ignorance of the substitution of different plans and specifications, and to quiet him whenever he discovered that deviation had occurred from the original plan by false promises that they should be corrected. But there is no evidence that the plaintiff suggested such a course of conduct by the architect, or consented to its adoption, and there is no finding to that effect, by the referee. There is a paragraph in the contract which provides that if any dispute should arise respecting the true construction and meaning of the drawing or specifications it should be decided by the architects, and their decision should be final and conclusive, and it is claimed that complaints made by the defendant to the architects in the absence of the plaintiff, and their statements in reply, are admissible under this provision.

It is difficult to see upon what principle such a claim can rest. The reference in this clause is to disagreements between the parties, in which case the matter in difference was to be submitted to the architects, who, after hearing both sides, were to render a final decision in the premises. Ex parte statements by the defendant tó his own agent, and the opinion of the latter based upon them, evidently were not within the contemplation of the parties when this stipulation was adopted.

We also think it was error to sustain the objections of the defendant to the questions put to the witness King, on cross-examination, in which he was asked whether there had been any disagreement between him and the architects; or whether he left their employ in consequence of a disagreement; or whether when. he left it was with friendly feelings towards them, and whether his relations with them were then friendly. This was the principal witness for the defendant to establish the alleged conspiracy. He was at the time employed as a draughtsman in the office of the architects, and testified to transactions between them and the-plaintiff tending to show the collusion which the referee found. A few months after he left their employ, and we think it was-competent for the plaintiff to prove, if he could, that the witness-was unfriendly to the architects. The object of the defense was-to charge the plaintiff with the consequences of a conspiracy between him and the architects, and it was therefore quite as material and important for the plaintiff to show that the witness by whom it was sought to establish the unlawful combination was-hostile to one of the parties to it as it would have been to have shown hostility on his part towards the. plaintiff himself. The admission or rejection of the evidence was not discretionary with the trial court. It is a material fact which may be proved by any competent evidence, as was held by this court in People v. Brooks, 131 N. Y., 321; 43 St. Rep., 294, It was not there held, as the counsel for the defendant seems -to suggest, that it was in the discretion of the court whether such questions should be allowed. All that was said upon the point was that the extent to which such an examination may go must be in some measure within the-discretion of the trial judge. This must be so, or else it might, become interminable.

But here the whole inquiry was ruled out. Even general questions were -disallowed, and, as it must be assumed, for the purposes of this appeal, that if answered the responses would have-shown bias, the plaintiff may have been prejudiced by the exclusion of the evidence.

Inasmuch as'the order must, for these reasons, be affirmed, the-right of the plaintiff to recover for extra work need not be considered. The defendant may have a just defense, but he has-chosen to take the risk of an appeal, with the sequence of a judgment absolute in case of an affirmance, and this court has no altérnative except to affirm the order and direct judgment for the-plaintiff, with costs.

All concur.  