Opinion
Argued November 22, 1905
Decided December 5, 1905
L. Laflin Kellogg and Alfred C. Pette for appellant.
John J. Delany, Corporation Counsel ( Theodore Connoly and Terence Farley of counsel), for respondent.
The unanimous affirmance by the Appellate Division has foreclosed all questions upon this appeal, except those arising out of exceptions to rulings upon evidence and the charge of the trial court. Two such questions are presented by the appellant, but we deem it necessary to consider only one of them, and that relates to the admission in evidence, on behalf of the defendant, of a letter written during the course of the work, by the secretary of the defendant's department of public works, to the plaintiff. This letter reads as follows:
"I am directed to inform you of the adoption of the following resolution at a meeting of the board held this day: `WHEREAS, this department entered into a contract with James A. Gearty, under date of May 18th, 1895, for regulating, paving, etc., the roadway of Transverse Road No. 4, Central Park; and
"`WHEREAS, it appears that the work under said contract is being delayed and is not being done in accordance with the terms of said contract; therefore,
"` Resolved, That the Commissioners of the Department of Public Parks are of the opinion and do certify in writing that said work is unnecessarily and unreasonably delayed, and that said contractor is wilfully violating the conditions of said contract, and that said work is not being done or progressing according to the terms of said contract.
"` Resolved, That the Secretary be directed to notify said contractor, pursuant to the provisions of said contract, to discontinue all work thereunder, and that the Commissioners of the Department of Public Parks will complete the work as therein provided.'"
When this letter was offered in evidence the counsel for the plaintiff objected to it and said: "I fail to see its relevancy. That is an effort to take advantage under a peculiar clause of the contract which allows them to take away the work. No such notice has been stated. No such notice has been acted upon at the time we were discussing this work." The counsel for the defendant then said: "It is to show the manner of the plaintiff's performance. It is one of the issues here." The court overruled the objection, saying, "It may have some bearing on the penalty they imposed," and the defendant's counsel took an exception.
There was a clause in the contract which, so far as material to this discussion, provided that if the commissioners of the park department should be of opinion that the contractor was not performing the work in compliance with the contract, they could notify him in writing to discontinue work thereunder and complete the same themselves. This letter was evidently sent in pursuance of some design on the part of the commissioners to take advantage of this clause of the contract, but the record discloses that no such action was ever taken and that the plaintiff was permitted to complete the work.
It will be observed that the letter contains statements to the effect that the plaintiff was not doing the work in accordance with the terms of the contract; that it was being unnecessarily and unreasonably delayed, and that he was willfully violating the conditions of the contract. The letter was not offered in evidence for the purpose of showing notice and had in fact been withdrawn by a subsequent communication. Its admission in evidence was attempted to be justified on the ground that it showed he manner of performance, and the learned trial judge evidently so understood it, as he said it might have some bearing on the penalty imposed for failure to proceed with the work in the time specified by the contract. In this view of the case it is obvious that the statements in the letter were merely self-serving declarations made by officers of the defendant who assumed to characterize and determine the manner of plaintiff's performance of the work under the contract. They were ex parte statements in no way binding on the plaintiff and were clearly inadmissible. ( Bank of British North America v. Delafield, 126 N.Y. 410; Austin v. Bartlett, 178 N.Y. 310; Larned v. Tillotson, 97 N.Y. 1; Thomas v. Gage, 141 N.Y. 506.)
The learned counsel for the respondent seeks to avoid the effect of this error by claiming that the objection made by the plaintiff's counsel did not point out to the court the real ground of its inadmissibility. The colloquy which occurred between counsel and court at the time of the admission of the letter indicates quite clearly, we think, that the court was advised of the purport of the evidence and what was sought to be proved by it. While the objection was placed upon the ground of irrelevancy, its incompetency was clearly apparent. ( M. Groh's Sons v. Groh, 177 N.Y. 8, 15.) Nor can we properly say that the evidence was harmless. The trial was before a jury and these statements coming from the officers of the city may have had considerable weight with the jury. The burden is on the respondent to show that the reception of the letter was harmless and this he has failed to do. ( Foote v. Beecher, 78 N.Y. 155; Jefferson v. N.Y.E.R.R. Co., 132 N.Y. 483, 486; People v. Strait, 154 N.Y. 165, 171.)
The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., O'BRIEN and BARTLETT, JJ., concur; GRAY, HAIGHT and VANN, JJ., dissent.
Judgment reversed, etc.