It was error to allow the witness Solomon Henriques to answer the question whether Joseph Stiner “ assumed to personate the plaintiffs or either -of-them,” in his interviews with the landlords. It called for an opinion upon what Joseph Stiner did, instead of requiring the witness to detail what was said and done, leaving to the court to deduce the conclusion. And as the inquiry bore pointedly upon an important branch of the case, namely, circumstances tending to show whether a fraud had or had not been perpetrated by Joseph, we cannot say that the error was of such a character that it could not “have produced injustice in the general result;” and it is only when that can be said, that an erroneous ruling on the trial of a cause on the equity side of the court can be disregarded. (Forrest v. Forrest, 25 N. Y. 512.) The question to Joseph Stiner himself, whether “he personated” the plaintiffs may be upheld as calling for a fact, and a fact attributed to the witness himself; but the question to Henriques goes much further, and calls upon him to decide upon the point whether what occurred amounted to a personation of the plaintiffs. That was for the court, not for a witness to determine.
But I am not disposed to let my objection to this judgment rest upon a mere question of evidence. I want to put it plainly and distinctly upon the broad ground that the act of which Joseph Stiner was guilty was unholy in the law, and that no matter how adroitly it may have been accomplished, a court of equity, condemning it as a fraud, will treat him as a trustee1 of the property for the benefit of, and oblige him to transfer it to the plaintiffs. This is a principle of equity jurisprudence so well understood and recognized, that not only is it not necessary to cite authorities to support it, but it was not attempted to be disputed *670by the learned counsel who argued for the respondents. Indeed that distinguished gentleman, as might have been expected from one whose views of right and wrong are so accurate, did not hesitate to say that if the evidence on the trial led to the same result, as to the facts, which I reached upon the affidavits when the motion to dissolve the injunction was argued before me, the law as I laid it down in in the brief opinion I then pronounced, was unquestionably correct. I want no better authority in support of my law, and I shall proceed to show that upon the case as developed on the trial at the special term, the facts bring this matter directly within the principles I have mentioned.
The judge, at special term, has found that the lease was executed and delivered to Joseph Stiner under the belief on the part of the lessors that it was to and for the benefit of the person or persons on whose behalf one of the plaintiffs had called upon them at Hewburg, and the contrary thereof was not discovered by the landlords for some time thereafter. It is plain, therefore, that by mistake of the landlords the defendant Stiner has obtained what was designed for the plaintiffs; and if he has in any degree misled the landlords into the belief that in giving that lease to him they were doing the same thing as if they were dealing directly with the plaintiffs, then no matter how cunning the artifice to which he resorted, nor how little he did or said to produce that impression, if he did anything for that purpose it was a fraud, and he cannot be permitted to keep the fruits of it, if the plaintiffs elect to treat him as their trustee.
It was not necessary that he should say that he was a member of the plaintiffs’ firm. A shrewd man, bent upon getting an advantage like that which Joseph Stiner has taken of these plaintiffs, would undoubtedly avoid announcing, in so many words, that he was perpetrating a fraud. He would very likely say, as he claims he did, that he was not a member of the plaintiffs’ firm, but did *671business on Ms own account; but the question is, did he not say something else which led to the mistake of which he seeks to reap the benefit ? That he did, and that everything else which has been testified to or found in this case is consistent with the fact that his other statement, to which I shall presently allude, misled the landlords, I think I can easily demonstrate.
When Messrs. Eoe and Hasbrouck came to this city, they happened accidentally to call at a store of the defendant Stiner, which adjoined the one kept by the plaintiffs. They were in fact in search of the plaintiffs. When they saw Joseph Stiner, he was informed that he was not the person who had called upon Mr. Hasbrouck at Hewburg. How, that anybody can believe that Joseph Stiner, with that information, and with what transpired at that interview, did not know that his next door neighbors were the persons that had called upon Mr. Hasbrouck, and whom his visitors then sought, is incredible; and whether or not the law called upon him to tell them so, common honesty, as I have before remarked in this case, certainly did. But still, if he did nothing to deceive, perhaps his crime was not cognizable in a human tribunal. It is not necessary to say. But what did he do ? He told them that he was not the person that called upon them at Hewburg, “but that they could do the business with him.” What matters it that he did not personate one of the plaintiffs ? What matters it that he told the landlords he was in business on his own account, when at the same time—when admonished that he was not the individual they expected to see—he says, nevertheless, you can do the business with me. Was it not as much as to say, though I tell you I am in business on my own account; though I do not tell you that I am one of the persons who have called upon you ; yet I do tell you that you can do the business with me. And is that not as much as to say, it is just the same whether you see them or me ? That is why, though Jo*672seph Stiner did not personate one of the plaintiffs, the intelligent landlords who dealt with him were misled into the belief that the plaintiffs were getting the lease. Except for that statement, “yon can do the business with me,” can any one believe that the Messrs. Roe and Hasbrouck, in the face of the fact that Joseph Stiner did not personate one of the plaintiffs, and informed them that he did business on his own account, could have been misled into the belief that they were giving, as the judge has found, a lease to and for the benefit of the person or persons on whose behalf one of the plaintiffs had called upon them at Rewburg. Of "course Joseph Stiner did not say, I am “Jacob Stiner” or “ Mr. Moses” or one of the firm of Jacob Stiner & Co., but he said “ that makes no difference, you can do the business with me.” By that assertion he misled the landlords into giving to him a lease, believing it was being given to or for the benefit of the plaintiffs. By that assertion he misled the landlords into the belief that he was acting for the benefit of the plaintiff's; and having through that obtained this lease, his attempt to retain it is a fraud which a court of equity should not uphold.
[First Department, General Term, at New York, January 3, 1871.The judgment below should be reversed, and a new trial ordered.
Judgment affirmed.
Ingraham, P. J., and Geo. G. Barnard, and Cardozo, Justices.]