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From this letter, and the subsequent correspondence of the parties, admitted without objection, it is quite evident that defendant accepted the two letters as constituting the contract and conceded the additional terms proposed by the plaintiff.

[1,2] Plaintiff offered evidence, which was admitted over the general objection of defendant, to the effect that there was a custom in the trade that "a box of primes” might contain 10 per cent. of "wasters,” namely, sheets of second and defective quality. I think it quite clear that this testimony was incompetent to vary the express and unambiguous terms of the contract, to wit, that each case should consist of “112 sheets primes." Hopper v. Sage, 112 N. Y. 530, 535, 20 N. E. 350, 8 Am. St. Rep. 771. The respondent recognizes the seriousness of this point and endeavors to meet it by the claim that the contract calls for only “200 cases"; but that description is taken from the plaintiff's letter of December 6th, and not from defendant's of December 4th, which reads, "112 sheets primes

each case," and which, by the very premise of the existence of a contract, was part of the whole agreement. The objection taken by defendant to the admission of this evidence, and its consequent submission to the jury, though general, is sufficient to warrant a reversal of the judgment, because the testimony was in any event incompetent. Tooley v. Bacon, 70 N. Y. 34, 37.

There was ample testimony to the effect that the goods tendered to defendant contained a large proportion of defective plates. The question of the existence of the "custom” referred to was an integral and necessarily vital factor in the jury's verdict.

The judgment must therefore be reversed, and new trial granted, with costs to appellant to abide the event. All concur.

*

WOODRUFF v. BENESCH et al. (Supreme Court, Appellate Term, First Department. June 16, 1920.) Evidence 148—Speaker over telephone identifiable by voice and discussion

of personal affairs.

To render testimony of a telephone conversation competent, the witness may identify the speaker by his voice, and also by the manner in which

he discussed intimate details of personal business affairs. Appeal from City Court of New York, Trial Term.

Action by Stanley R. Woodruff against Adolph Benesch and another, copartners, etc. From a judgment for plaintiff, rendered on the verdict of a jury, defendants appeal. Reversed, and new trial ordered.

Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

Jesse S. Epstein, of New York City (Arthur J. Brothers, of New York City, of counsel), for appellants.

Chester Mayer, of New York City (Edward U. Roth, of New York City, of counsel), for respondent. Co For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) DELEHANTY, J. The vital issue herein arises out of a purchase by defendants (stockbrokers) for plaintiff's account of 225 shares of the Penn-Virginia Coal & Coke Company. The plaintiff claims that such purchase was unauthorized; defendants contending that plaintiff's order to purchase said stock was given by him over the phone to one Thompson, their New York office manager. To prove this defendant called as a witness the said Thompson, who was interrogated and answered as follows:

"Q. Do you know Dr. Woodruff, the plaintiff in this case? A. No, sir; not until this morning. I never met him until this morning.

"Q. Did you ever have any telephone conversation with Dr. Woodruff ? A. I did.

"Q. How do you know that you were speaking to Dr. Woodruff on the telephone? A. By having talked with him several times on familiar subjects of bis account; matters that he would and I would know more intimately than anybody else.

"Q. Well, on or about November 21, 1918, did you phone to Dr. Woodruff at his home? A. On November 20th 1 telephoned him.

"Q. And did some one answer the wire? A. Yes, sir.

"Q. And what did they say as to their identity? A. They said, "This is Dr. Woodruff.'

"Q. Have you heard the plaintiff's testimony to-day? A. I have.

"Q. And do you recall the voice over the telephone, as compared with his voice to-day? A. I do.

"Q. And are they the same voice? A. They are.

“Q. Now will you tell us what conversation you had with Dr. Woodruff on November 20, 1918?

“Mr. Mayer: I object to the testimony, on the ground that it is incompetent, and an improper identification."

The objection was sustained and excepted to. The intent of this proof was to establish that in this conversation plaintiff had instructed Thompson to sell certain other shares of stock held by defendants in plaintiff's account, and with the proceeds thereof to purchase the Penn-Virginia Coal & Coke Company stock referred to. As this offer of testimony went to the very crux of the case, it is quite apparent that, if improperly excluded, a reversible error has been committed. Chamberlayne, in his work on Evidence, at page 174c, states the general rule regarding the admissibility of telephone conversations as follows:

"A witness who testifies to a conversation conducted by means of a telephone may properly identify the speaker at the other end by means of his voice. Identification need not, however, take place in this way. The person in question may be entirely unacquainted with the voice of the one to whom he is speaking. The identification may come later. A conversation by telephone is admissible in evidence, when from all the circumstances the identity of the person answering the telephone is established with reasonable certainty and recognition of the voice or identity by admission of the person is not necessarily required. The fact that communication is being held with a person's office or place of business has an important bearing in this respect, as tending to show that the person answering was the man in charge of the business there being conducted or authorized to represent the latter."

This rule has been followed in this state in the recent case of Mankes v. Fishman (3d Dept.) 163 App. Div. 789, 149 N. Y. Supp. 228, which holds that one who has held a conversation by telephone with another, stated to have been defendant cannot testify, as to what that person said, unless he recognized his voice, or his identity has been established with reasonable certainty by other evidence. Not only did the witness Thompson identify the voice of plaintiff, after hearing his testimony herein, as to the voice of the individual who conversed with him on the telephone on November 20, 1918, but also recognized his identity from the manner in which he then and on previous occasions on the phone had discussed the intimate details of his stock account with defendants herein. In People v. Strollo, 191 N. Y. 43, 83 N. E. 573, the court directly passed upon the point here discussed. There the witness could not identify the party's voice at the time of the telephone conversation, but met him later, and at the trial testified that the voice which came over the telephone was the voice of defendant. The court held that, while the testimony was weak as to weight, it was not incompetent. Testing the proof submitted by the rule and authorities cited, I conclude that the ruling of the learned court in the respect named was erroneous and highly prejudicial to the rights of defendant, which call for a reversal of the judgment appealed from, and the granting of a new trial, with costs to appellants to abide the event.

182 N.Y.S.-56

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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RICHARD et al. v. P. FRANZ & CO., Inc. (Supreme Court, Appellate Term, First Department. June 24, 1920.) 1. Judgment w 255—Covering items not proven erroneous.

A judgment for a storage charge cannot stand, where some of the particular items therein through inadvertence were not proven on the

trial. 2. Courts ww190 (9)–Reduction of judgment of Municipal Court by excluding

unproven items not allowed, where record too inaccurate.

if the inclusion of unproven items in judgment of Municipal Court were the only appearing error, the appellate court might accept the respondent's offer to reduce by excluding such items; but where there are other errors, this defect merely emphasizes the inaccuracy and infirmity of the judgment.

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Oscar L. Richard and others against P. Franz & Co., Incorporated, a domestic corporation. Judgment for defendant after a trial by a judge without a jury, and plaintiffs appeal. Reversed, and new trial granted.

Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

John J. Schwartz, of New York City (David Burr Luckey, of New York City, of counsel), for appellants.

Wolf & Falk, of New York City (Alexander Wolf, of New York City, of counsel), for respondent.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests Indexes

(182 N.Y.S.) PER CURIAM. This was an action in replevin to recover possession of two sections of a bull wheel (part of a derrick), alleged to be wrongfully detained by the defendant, with whom the same had been stored. The defense is, in substance, that the goods were being held by defendant to protect its lien for storage, amounting to $210.82, and defendant demanded judgment for the amount of its lien, which was awarded to defendant.

An examination of the record indicates that originally there were four sections, apparently constituting two bull wheels, stored with defendant, and that one wheel was taken away by plaintiffs about a month after the storage began. It is not clear whether the storage charge accrued up to the time of the removal was paid or not, though apparently it had been. It also appears that the reasonable storage charge is $7 per month per section. Even as to this, however, there is some doubt left by the record, since some of the witnesses speak interchangeably of sections and wheels.

[1] Respondent in his brief presents a calculation to the effect that a total storage charge of $196 had been proved. In this, however, he fails to give credit for the previous payment, if any. Assuming, however, that the $196 is correct, he explains that the difference between that sum and $210.86 “consisted of several small items for labor

for which the plaintiffs were liable.” The particular items, however, through inadvertence, were not proven upon the trial. But a judgment cannot be sustained upon testimony that was not offered.

[2] Were that the only error appearing, we might accept the respondent's offer to permit a reduction of the judgment to $196, with appropriate costs; but the defect in this respect only emphasizes the inaccuracy of the record as a whole, and the infirmity of the resulting judgment.

Plaintiffs' contention is that they made a tender of the amount said by some one on behalf of the defendant to be due at the time a demand for the articles was made. In this respect, also, the testimony is so confusing and inexact as to be incapable of precise formulation, or to form the basis of any legal conclusion.

Under the circumstances, therefore, we feel that the judgment must be reversed, and new trial granted, with $30 costs to appellant to abide the event.

GRIFFIN ROOFING CO., Inc., V. SEEMAN et al. (Supreme Court, Appellate Term, First Department. June 24, 1920.) Courts 190 (8)—Order of Municipal Court setting aside verdict presumed

granted on exceptions taken at trial.

In an action in Municipal Court for damages to a motortruck, where the charge was fair, and not excepted to, and no reason is shown for setting aside the verdict, and the order states no reason therefor, this court is bound to assume that the order was granted upon the exceptions taken upon the trial, and, where there were none, the order must be reversed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by the Griffin Roofing Company, Incorporated, against Joseph Seeman and others. From an order setting aside the verdict of the jury in his favor for the sum of $250, plaintiff appeals. Order reversed, and verdict reinstated.

Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

Jacobson & Pollock, of New York City (H. Louis Jacobson, of New York City, of counsel), for appellant.

Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for respondents.

DELEHANTY, J. The action was brought to recover damages done to plaintiff's auto truck, caused by collision with a truck driven by defendant's employé. As is usual in such cases, each side charges the other with negligence; and upon this point nothing but a question of fact was involved. A careful reading of the testimony leads to but one conclusion, and that is that the jury could not reasonably have arrived at any other verdict than one for the plaintiff.

The respondent claims that the amount of damages was not established by proper proof. The plaintiff's entire claim, as set up in his bill of particulars, aggregated the sum of $527.13; but it appears that the plaintiff's truck was completely overhauled after the accident, and that a considerable amount of repairs charged for was not the result of the collision. It was shown, however, that the crank case and crank shaft were broken, the chassis and front axle bent, the radiator damaged, and several minor injuries done to the truck, which were directly caused by the accident, and the reasonable value of the replacements and repairs for these injuries equaled, if not exceeded, the sum of $250, for which the verdict was given.

The charge to the jury was fair, and there were no exceptions taken thereto by the defendant. There is no reason shown for setting aside the verdict, nor does the order state any reason, and in such cases this court is bound to assume that the order was granted upon the exceptions taken upon the trial, and in this case there were none. This alone requires the reversal of the order. Badanes v. Feder et al., 47 Misc. Rep. 91, 93 N. Y. Supp. 478; John C. Wiarda & Co. v. Ind. Chem. Co., 162 N. Y. Supp. 158.

Order reversed, with $30 costs to the appellant, and verdict reinstated. All concur.

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