This action was brought to recover the value of materials and labor alleged to have been furnished and supplied by the plaintiffs to the defendant in the erection of a cottage at Lake Placid. The defendant, who was the owner of the premises where the cottage was erected originally, made a contract with one Williams to build the same but the latter eventually made default in the performance of his contract. The well-defined issue which was vigorously litigated on the trial was whether the plaintiffs furnished their material and services to Williams, the contractor, or to defendant, the owner. The plaintiffs under their complaint assumed the burden of establishing that their debtor was the defendant and the latter insisted that he never incurred any original liability to plaintiffs for their material and services; that at most he only became responsible for the discharge by Williams *Page 402 of any liability which he might incur and that this responsibility was not incurred in any legal way under the Statute of Frauds.
The issue of fact between the parties has been so settled by the verdict of the jury and by the unanimous affirmance of the Appellate Division that we are not permitted to consider the merits of the litigation or of some of the questions which are pressed on our attention in connection therewith on this appeal. We are able to see, however, that there was sufficient merit in appellant's defense, so that he was entitled to have the same presented and submitted unembarrassed and unincumbered by erroneous rulings and incompetent evidence. We think that this right was not secured to him and that the plaintiffs with the approval of the learned trial justice succeeded in injecting into the case evidence which had no place there and which was calculated materially to influence the jury against the appellant.
One of the plaintiffs was called as a witness and was allowed to answer in the affirmative the questions whether "he understood that Mr. Seligman was a man of responsible financial means," and "Did you understand that you were selling the goods to Mr. Seligman by Williams?"
Of course this case did not turn on the question of plaintiffs' "understanding" who their debtor was to be and it ought not to have turned on the question who was the most advisable man to be charged with the goods. The contractor, Williams, being evidently irresponsible, the ruling of the trial judge, allowing the above questions to be answered, plainly submitted to the jury improper considerations which very probably influenced their judgment. (Green v. Disbrow, 56 N.Y. 334.)
The contractor, Williams, was allowed to state in spite of appellant's objection and exception that at the time when he was put in default on his contract he had performed several hundred dollars of extra labor on appellant's cottage, and also was allowed to give evidence of what it would cost to complete the building. *Page 403
We see no pertinency or propriety whatever in this evidence and its only purpose could have been to convince the jury that appellant had secured enough extra benefits from Williams under the contract so that he could the more easily afford to pay respondents' bill in this case. It is apparent that no such consideration should have been allowed in the case.
Williams also testified that at the times when respondents delivered lumber at the cottage they transmitted with each load a shipping bill and that these bills were delivered to him and by him checked up. Thereafter without any proper attempt to procure these bills on the trial and without any sufficient evidence of their loss or destruction, the witness Carrier was allowed to testify that each of these bills was made out "J.B. Williams for E.R.A. Seligman." Of course that evidence was of very considerable significance on the trial. If at the time when materials were being delivered and before any contest had arisen between the parties they were so delivered under bills in effect made out to defendant it was a matter of considerable importance and the evidence would naturally have much weight with the jury, we think there was no proper foundation laid for it and that it was incompetent to admit it.
In some case perhaps we might endeavor to overlook all or part of the errors to which we call attention, but in the present case we think the appellant was under enough natural disadvantages in the trial of his case so that he is entitled to have the rules of evidence administered in his behalf with reasonable strictness.
The judgment should be reversed and a new trial granted, with costs to abide event.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, WERNER and CHASE, JJ., concur.
Judgment reversed, etc. *Page 404