Opinion
December 20, 1961
Appeal from a judgment of the Court of Claims. The Court of Claims has held in this case that the termination date on a contract for construction of a portion of the Thruway applied also to the claimant's separate engineering contract for supervising the construction; and that an extension by the Authority of the time of performance by the prime contractor without claimant's consent breached claimant's contract with the Authority which has appealed from the resulting judgment. On the argument of this appeal the Authority offered, for the first time, a letter attributed to the claimant which recommends an extension of the prime contractor's time of performance; and claimant makes vigorous objection to the reception and consideration of this exhibit which was not marked in evidence on the trial. If, as the Authority contends on appeal, the claimant's contract for engineering services was not governed by the time of performance stated in the prime contract, the judgment should be reversed and the question whether claimant did or did not consent to extension of the prime contract would be immaterial. But if it be held on this appeal, as the Court of Claims has held, that the contracts were, as to the date of completion, interdependent the further question of whether claimant suggested or agreed to an extension of time of performance of the prime contract would become important. Without the exhibit before it the Court of Claims has found that the Thruway breached its contract with claimant by "changing the date of completion for construction without claimant's consent", and that it "unilaterally extended the contract completion date". The rule is that a court on appeal may receive further evidence under extremely limited circumstances, e.g., "record evidence" in support of a judgment. In the words of BROWN, J., in Dunham v. Townshend ( 118 N.Y. 281, 286) reception of even such limited "record" evidence is "never allowed" on appeal for the purpose of "reversing a judgment". The discussion in People v. Flack ( 216 N.Y. 123, 127) develops the basis of this rule and notes that when such evidence is admitted, it is "record evidence in the strict sense of that term". Record evidence will usually consist of indisputable public documents such as judgments, certificates of naturalization, etc. The statements printed on the back of an issued liquor license were received by the court in support of the determination reviewed on appeal in Matter of Goldfinger v. State Liq. Auth. ( 10 A.D.2d 901), a case relied upon by appellant. Reliance is placed by appellant also on Ripley v. Storer ( 309 N.Y. 506), but there the question was how far an earlier judgment was res judicata. The judgment and decision on the first trial had been received in evidence on the second trial; the record of the first trial had been offered and marked, but not received, and in considering the scope of the first judgment the Court of Appeals ruled that the appeal record should have been received and considered on appeal in defining the scope of the first judgment. This decision is not helpful to appellant's argument on this application and is distinguishable in at least two important aspects. The exhibit offered by appellant in this court, although taken from a public office file, is not a public document such as a judgment or recorded deed; it is, rather, as between these litigating parties, one of which is a governmental agency, a matter of proof in the possession of one party which that party failed or neglected to discover and offer at the time of trial. It is also argued by the Authority that this letter actually was a part of an exhibit offered in evidence; but Exhibit 12 was dated May 18, 1955, five months before the letter now offered in evidence, and refers to an entirely different situation and we can see no relationship. There is a possibility that another document of October 25, 1955 fastened to the file in which Exhibit 12 (as well as Exhibits 13, 14, 15 and others) is found, relates to the events described in this letter, but although a number of other papers in this file are marked in evidence, the October 25 document is not marked. The Authority does not demonstrate that the letter now offered was attached or related to any exhibit actually in evidence; and it is abundantly clear that the Judge of the Court of Claims never saw, considered, or had his attention called to this proposed exhibit. We decline, therefore, to receive or consider the exhibit for the first time on appeal. Opportunity should be afforded the Authority, however, to apply to the Court of Claims to reopen the case and to offer, and the claimant opportunity to object, refute, or explain, the exhibit; opportunities which for either side do not adequately exist in this court on appeal. If the authority is so advised, it may submit an order remitting the case to the Court of Claims for further proceedings in connection with this proffered proof, and providing that the record now on file here be held here until either side reviews on appeal any further resulting order or judgment of the Court of Claims. We do not, of course, suggest that the case be reopened by the Court of Claims; that the exhibit be received or rejected; or what effect it may have, if received. We merely hold that since we will not now receive the exhibit opportunity be given the Authority to make proper application to the trial court for appropriate relief. If the Authority elects to withdraw the offer of the exhibit made in the argument, it should within 10 days of the receipt hereof notify the clerk and decision will thereafter be made in the appeal on the record before us without consideration of the offered exhibit. Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.