De Bono v. Lombardi

In an action to recover damages for alleged breach of a contract to demolish an existing building and erect a new building, judgment in respondent’s favor upon a counterclaim, affirmed, with costs. No opinion. Carswell, Sneed, Wenzel and MacCrate, JJ., concur; Nolan, P. J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum: In my opinion the trial court unduly restricted plaintiff’s proof with respect to what occurred at the meeting at the attorney’s office at which, apparently, defendant was present. There is no evidence that what was said was “ without prejudice ” and the attorney’s statement that such was the case was immediately -denied. Some further inquiry should have been permitted to lay a foundation, if possible, for the reception in evidence of any unqualified and unequivocal admission which might have been made. (Cf. White v. Old Dominion S. S. Co., 102 N. Y. 660; Brice V. Bauer, 108 N. Y. 428, 433; Zimmerman v. Roessler & Hasslacher Chemical Co., 246 App. Div. 306, 315, and Armour v. Gaffey, 30 App. Div. 121, 129.)