Sackett Plaster Board Co. v. Amsterdam Building Co.

Bijur, J. Plaintiff relied on an exception to the exclusion of the question: “Eor whom was Ruble acting when he signed this contract ? ” it being plaintiff’s endeavor to prove that a contract entered into with the defendant by Ruble in his own name was made by him as agent for the plaintiff. Questions of this character have frequently been sustained by the Court of Appeals as calling for an answer in respect of a fact rather than a statement of a conclusion. Sweet v. Tuttle, 14 N. Y. 465, 471-472 ; Knapp v. Smith, 27 id. 277, 281; DeWolf v. Williams, 69 id. 621, 622; Kelly v. Doody, 116 id. 575, 583; Frear v. Sweet, 118 id. 454, 459-460; Pichler v. Reese, 171 id. 577, 578; People v. Mingey, 190 id. 51, 64, 66; and the rule was followed in Levy v. Huwer, 80 App. Div. 499. In but one case (Nicolay v. Unger, 80 N. Y. 54, 56) has the Court of Appeals approved the exclusion of such a question. It has, however, often said that it is but a narrow dividing line which separates the permissible from the obnoxious questions of this character —■ a line to be drawn according to the circumstances of the particular case. In the case at bar, the correctness of the ruling of the trial judge in excluding the question is confirmed by the fact that, after the exclusion, plaintiff endeavored to prove Ruble’s agency by other testimony but failed to do so, thus demonstrating that the answer to the question, had it been allowed, would have been a statement of a mere conclusion. Seabuby and Lehman, JJ., concur. Judgment affirmed, with costs.