Johnston v. Thompson , 30 N.Y. Sup. Ct. 90 ( 1880 )

By the Court :

We are of the opinion that a new trial must be granted because of the admission of improper evidence against the defendant’s objection. Even admitting that the proof was sufficient to establish the fact of Bisseil’s agency, his declarations and admissions when not engaged in the performance of the business of the agency would not bind his principal. The rule of law upon this subject is this, that to make the declarations or admissions of an agent evidence against his principal, they must be connected with the trmisaction then being done by him.for Ms principal. They must be made not only during the continuance of the agency, but in regard to a transaction depending at the very time. (Anderson v. Railroad Co., 54 N. Y., 334-341; Bap. Ch. v. B. Ins. Co., 28 Id., 153-160 ; Cortland County v. Herkimer County, 44 Id., 22-24 ; Luby v. H. R. R. Co., 17 Id., 131, 133; Hydorn v. Cushman, 16 Hun, 107.) This rule of evidence was violated in several instances on the trial, and for this reason there must be a new trial.

Judgment reversed; new trial granted; costs to abide the event; and reference discharged.

Present — Learned, P. J., Bocees and Landon, JJ.

Judgment reversed, new trial granted, referee discharged, costs to abide event.