Admissibility of Evidence - Admissions and Letters by Party’s Attorney Admissible in Evidence
“A principal-agent relationship may be established by evidence of the ‘consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act,’ even where the agent is acting as a volunteer.” [1]Once an agency relationship is established, the “general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually communicated.”[2]
Under principles of agency, where an attorney is employed to represent a client in a particular matter, his or her acts or statements with regard to that matter that are within the scope of his authority is ordinarily of the same effect as though made by the client himself or herself. Statements made by an attorney while acting in his or her capacity as an attorney, are, like statements made by any other agent authorized to speak for the principal, admissible against a party. [3]
Out-of-court statements offered for the truth of the matters they assert are hearsay and may be received in evidence only if they fall within one of the recognized exceptions to the rule against hearsay. [4]
“[T]he hearsay statement of an agent is admissible against his or her employer under the admissions exception to the hearsay rule if the making of the statement is an activity within the scope of [the agent's] authority”.[5]
Informal judicial admissions are recognized as “facts incidentally admitted during the trial or in some other judicial proceeding, as in statements made by a party as a witness, or contained in a deposition, a bill of particulars, or an affidavit.” [6]
Admissions made by counsel on behalf of their clients are binding.[7] Admissions made by an attorney while acting in his authorized capacity are admissible against a party.[8]
Where there is no basis for questioning the authority of the attorney to make a representation in a letter, the letter should be admitted into evidence.[9] Counsel's admission made in a letter which is unquestionably within counsel's authority is properly admissible into evidence, although not necessarily conclusive. [10]
Admissions by counsel, as by any other agent, are admissible against a party provided that the statements had been made by the attorney while acting in his authorized capacity.[11]
[1] Art Fin. Partners, LLC v. Christie's Inc., 58 A.D.3d 469, 870 N.Y.S.2d 331, 333 (App. Div. 2009) (quoting Fils-Aime v. Ryder TRS, Inc., 40 A.D.3d 917, 837 N.Y.S.2d 199, 200 (App. Div. 2007)).
[2] Center v. Hampton Affiliates, Inc., 66 N.Y.2d 782, 784, 497 N.Y.S.2d 898, 488 N.E.2d 828 (1985).
[3] Bellino v. Bellino Construction Co., Inc., 75 AD2d 630, 427 NYS2d 303 (2d Dept., 1980); Tai Wing Hong Importers v. King Realty, 208 AD2d 710, 617 NYS2d 793 (2d Dept., 1994).
[4] Nucci ex rel. Nucci v Proper, 95 NY2d 597, 721 NYS2d 593, 744 NE2d 128 (2001).
[5] Loschiavo v Port Authority of New York & New Jersey, 58 NY2d 1040, 462 NYS2d 440, 448 NE2d 1351 (1983); see Tyrrell v Wal-Mart Stores Inc., 97 NY2d 650, 737 NYS2d 43, 762 NE2d 921 (2001) ; Vivitorian Corp. v. Brooklyn Union Gas Co., 250 A.D.2d 762, 672 N.Y.S.2d 919 (2d Dep't 1998); Fruin-Colnon Corp., Traylor Bros., Inc. and Onyx Const. & Equipment, Inc. v. Niagara Frontier Transp. Authority, 180 A.D.2d 222, 585 N.Y.S.2d 248 (4th Dep't 1992).
[6] Prince, Richardson on Evidence § 8-219, at 529 [Farrell 11th Ed]; Matter of Union Indem. Ins. Co. of N.Y., 89 N.Y.2d 94, 103 (1996).
[7] Morel ex rel. Hernandez v Schenker, 64 AD3d 403, 882 NYS2d 112 (1st Dept 2009); Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996]).
[8] Burdick v. Horowitz, 56 A.D.2d 882, 392 N.Y.S.2d 666; People v. Rivera, 58 A.D.2d 147, 396 N.Y.S.2d 26, affd. 45 N.Y.2d 989, 413 N.Y.S.2d 146, 385 N.E.2d 1073; Treadwell v Doncourt, 18 A.D. 219, 45 N.Y.S. 946 (2d Dept. 1897)
[9] DiCamillo v. City of New York, 665 N.Y.S.2d 97, 98, 245 A.D.2d 332, 333 ( 2 Dept.,1997)(citing Gangi v. Fradus, 227 N.Y. 452, 125 N.E. 677; Skelka v. Metropolitan Tr. Auth., 76 A.D.2d 492, 430 N.Y.S.2d 840)
[10] Bellino v. Bellino Const. Co., Inc., 427 N.Y.S.2d 303, 303–04, 75 A.D.2d 630, 630–31 (, 1980)
[11] Burdick v. Horowitz, 56 A.D.2d 882, 392 N.Y.S.2d 666; People v. Rivera, 58 A.D.2d 147, 396 N.Y.S.2d 26, affd. 45 N.Y.2d 989, 413 N.Y.S.2d 146, 385 N.E.2d 1073; Treadwell v Doncourt, 18 A.D. 219, 45 N.Y.S. 946 (2d Dept. 1897)
“A principal-agent relationship may be established by evidence of the ‘consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act,’ even where the agent is acting as a volunteer.” [1]Once an agency relationship is established, the “general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually communicated.”[2]
Under principles of agency, where an attorney is employed to represent a client in a particular matter, his or her acts or statements with regard to that matter that are within the scope of his authority is ordinarily of the same effect as though made by the client himself or herself. Statements made by an attorney while acting in his or her capacity as an attorney, are, like statements made by any other agent authorized to speak for the principal, admissible against a party. [3]
Out-of-court statements offered for the truth of the matters they assert are hearsay and may be received in evidence only if they fall within one of the recognized exceptions to the rule against hearsay. [4]
“[T]he hearsay statement of an agent is admissible against his or her employer under the admissions exception to the hearsay rule if the making of the statement is an activity within the scope of [the agent's] authority”.[5]
Informal judicial admissions are recognized as “facts incidentally admitted during the trial or in some other judicial proceeding, as in statements made by a party as a witness, or contained in a deposition, a bill of particulars, or an affidavit.” [6]
Admissions made by counsel on behalf of their clients are binding.[7] Admissions made by an attorney while acting in his authorized capacity are admissible against a party.[8]
Where there is no basis for questioning the authority of the attorney to make a representation in a letter, the letter should be admitted into evidence.[9] Counsel's admission made in a letter which is unquestionably within counsel's authority is properly admissible into evidence, although not necessarily conclusive. [10]
Admissions by counsel, as by any other agent, are admissible against a party provided that the statements had been made by the attorney while acting in his authorized capacity.[11]
[1] Art Fin. Partners, LLC v. Christie's Inc., 58 A.D.3d 469, 870 N.Y.S.2d 331, 333 (App. Div. 2009) (quoting Fils-Aime v. Ryder TRS, Inc., 40 A.D.3d 917, 837 N.Y.S.2d 199, 200 (App. Div. 2007)).
[2] Center v. Hampton Affiliates, Inc., 66 N.Y.2d 782, 784, 497 N.Y.S.2d 898, 488 N.E.2d 828 (1985).
[3] Bellino v. Bellino Construction Co., Inc., 75 AD2d 630, 427 NYS2d 303 (2d Dept., 1980); Tai Wing Hong Importers v. King Realty, 208 AD2d 710, 617 NYS2d 793 (2d Dept., 1994).
[4] Nucci ex rel. Nucci v Proper, 95 NY2d 597, 721 NYS2d 593, 744 NE2d 128 (2001).
[5] Loschiavo v Port Authority of New York & New Jersey, 58 NY2d 1040, 462 NYS2d 440, 448 NE2d 1351 (1983); see Tyrrell v Wal-Mart Stores Inc., 97 NY2d 650, 737 NYS2d 43, 762 NE2d 921 (2001) ; Vivitorian Corp. v. Brooklyn Union Gas Co., 250 A.D.2d 762, 672 N.Y.S.2d 919 (2d Dep't 1998); Fruin-Colnon Corp., Traylor Bros., Inc. and Onyx Const. & Equipment, Inc. v. Niagara Frontier Transp. Authority, 180 A.D.2d 222, 585 N.Y.S.2d 248 (4th Dep't 1992).
[6] Prince, Richardson on Evidence § 8-219, at 529 [Farrell 11th Ed]; Matter of Union Indem. Ins. Co. of N.Y., 89 N.Y.2d 94, 103 (1996).
[7] Morel ex rel. Hernandez v Schenker, 64 AD3d 403, 882 NYS2d 112 (1st Dept 2009); Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996]).
[8] Burdick v. Horowitz, 56 A.D.2d 882, 392 N.Y.S.2d 666; People v. Rivera, 58 A.D.2d 147, 396 N.Y.S.2d 26, affd. 45 N.Y.2d 989, 413 N.Y.S.2d 146, 385 N.E.2d 1073; Treadwell v Doncourt, 18 A.D. 219, 45 N.Y.S. 946 (2d Dept. 1897)
[9] DiCamillo v. City of New York, 665 N.Y.S.2d 97, 98, 245 A.D.2d 332, 333 ( 2 Dept.,1997)(citing Gangi v. Fradus, 227 N.Y. 452, 125 N.E. 677; Skelka v. Metropolitan Tr. Auth., 76 A.D.2d 492, 430 N.Y.S.2d 840)
[10] Bellino v. Bellino Const. Co., Inc., 427 N.Y.S.2d 303, 303–04, 75 A.D.2d 630, 630–31 (, 1980)
[11] Burdick v. Horowitz, 56 A.D.2d 882, 392 N.Y.S.2d 666; People v. Rivera, 58 A.D.2d 147, 396 N.Y.S.2d 26, affd. 45 N.Y.2d 989, 413 N.Y.S.2d 146, 385 N.E.2d 1073; Treadwell v Doncourt, 18 A.D. 219, 45 N.Y.S. 946 (2d Dept. 1897)
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