Lederer v. Adler

Scott, J. The proof, assuming that it proved everything plaintiff claims for it, does not satisfy the allegations of the complaint. The complaint alleges that the defendants therein named, to wit; Ettie Adler, and the defendants Lazarus, entered into a conspiracy to cheat and defraud plaintiff. .The evidence does not connect Ettie Adler with any conspiracy at all. If any one conspired it was Jacob Adler, and it was the question of his participation which was submitted to the jury. This variance does not perhaps affect the present judgment, but may become important if a new trial be had. That there must be a new trial I am satisfied. The allegation in general is that Jacob Adler and the defendant Lazarus, entered into a conspiracy to defraud plaintiff’s' assignors by inducing them to sell goods to Adler, who was irresponsible and who in fact purchased such goods for the defendants Lazarus. The transactions said to have been induced by this conspiracy were all concluded before March 5, 1904, and on that date the cause of action was assigned to this plaintiff. Whatever cause of action the plaintiff has, must have been complete on that day, and. consequently the criminal enterprise which he alleges and of which he complains must have been then completed. Jacob Adler, as it is said disappeared for a time, but on March fourteenth he visited plaintiff’s assignors and made certain declarations and confessions to them concerning the complicity of the defendants Lazarus with the alleged fraud. This evidence was clearly incompetent and having been properly objected to, its admission constitutes error for which the judgment must be reversed. It is of course well settled [566] that after the fact of a conspiracy has been prima facie established the acts, admissions and declarations of any one of the conspirators done and made during the pendency of the criminal enterprise and in pursuance and furtherance thereof may be received in evidence against all the conspirators, but the declarations even of a coconspirator, made after the completion of the criminal enterprise, relating to a past transaction, and accompanying no act done in furtherance of the enterprise are incompetent against the other conspirators. N. Y. Guar. & Ind. Co. v. Gleason, 78 N. Y. 503, 514; People v. McQuade, 110 id. 284, 307. This evidence was most important and, perhaps, essential to the plaintiff’s recovery. Certainly without the evidence a verdict for defendants would have been justified. Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.