Warren Gordon Lighterage, Inc. v. Bartley Scow Co.

The action was brought to recover balance of $215.32 alleged to be due for charter hire and towage. The answer denied that the plaintiff rendered the services to the defendant as set forth in the complaint, pleaded payment and by amendment at the trial set up as a separate defense that the plaintiff, a New Jersey corporation, had failed to secure a certificate of authority from the secretary of state, authorizing it to do business in New York. The defendant claimed upon the trial that -it had had no *143dealings with the plaintiff corporation but had chartered the boats in question and had its other dealings with one Sullivan.

The only witness called for the plaintiff was its president and general manager, Warren Gordon. He testified in answer to the question “ on or about September eleventh, did you have a conference with anyone representing the defendant? A. I had a telephone conversation with Bartley’s office. I can’t say who was at the other end of the wire. * * * Q. Do you know with whom representing the Bartley scow, you talked in that telephone conversation on or about September 11, 1918? A. The man who answered the phone said it was Bartley.” Motion to strike out the answer was denied and exception taken. And then on page 7 appears the talk with this unidentified person.

The judgment in this case must be reversed because the court erred in refusing to strike out on motion of the defendant, appellant, this alleged telephone talle which the witness Warren Gordon testified that he had with some unidentified person. The motion to strike out should have been granted, and defendant’s exception to the court’s refusal to strike out the testimony presents reversible error.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Bijur and McCook, JJ., concur.

Judgment reversed.