
    SONDHEIM v. SCHMIDT et al.
    (Supreme Court, Appellate Term.
    November 7, 1900.)
    Witnesses—Privileged Communication—Employer and Clerk.
    Where, in an action on a written contract, the defense is interposed that the contract has been canceled, an agent of plaintiff, called as a witness by defendant, can testify to a conversation with the principal relative to such cancellation of the contract; the communication not being privi leged, as a conversation between a clerk and his employer on a business matter.
    Appeal from municipal court, borough of Manhattan.
    Action by Julius Sondheim against Katherina Schmidt and another. From a judgment in favor of plaintiff, defendants appeal.
    Reversed.
    Plaintiff brought an action to recover loss of mesne profits on a written contract made by defendants to accept all their fire insurance from the plaintiff for a period of years at a certain specified rate. The defendants attempted to show that the agreement had been canceled, and offered to prove by an agent of plaintiff certain declarations made by the plaintiff relative to canceling such contract, which was objected to on the ground that it was a communication of a clerk with his employer on a business matter, and was privileged, and the evidence was refused by the court.
    Argued before TRUAX, P. J., and DUGRO and SCOTT, JJ,
    A. Goldfarb, for appellants.
    Kurzman & Frankenheimer, for' respondent.
   PER 'CURIAM.

The ruling which sustained the objection to the question, “Did you in July, 1898, have any conversation with Mr. Sondheim as to canceling the agreement with the defendants?” was wrong, and may have prejudiced the defendants.

The judgment is reversed, and a new trial is granted, with costs t<? abide the event. ’ •  