11 Daly 239 | New York Court of Common Pleas | 1882
The facts of the case were fully set forth in the opinions reported in 8 Daly 481, the evidence taken on the first trial having been read to the jury on the second trial, and some additional testimony offered concerning specific vouchers among the number disputed. On the first trial the bank proved conclusively that two of the checks denied by plaintiff were issued by him, and gave evidence of a similar circumstantial character, though not so strong, concerning three others. The jury gave plaintiff a verdict including the amount of those five checks upon
My view of the law of the case is that the jury having found that the plaintiff had testified falsely as to seven of the missing checks were bound to discredit his testimony altogether, it being unsupported by any other witness or fact. His testimony as to those seven checks if false was willfully false, because he could not have been mistaken as to the question whether he drew for those amounts. He swore positively, and was convicted by the verdict of positive falsehood.
The jury finding plaintiff unworthy of belief on these seven material facts, and being in consequence bound to' reject his unsupported oath as to every other matter in controversy, should have rendered a verdict for defendant for these reasons. The bank had proved prima facie a stated- and settled account between him and itself. The entry of debits in the pass-book and striking a balance thereon is a statement of the account, and the delivery of the book to the dealer and his retention of it without objection makes it a stated account (Weisser v. Denison, 10 N. Y. 81 ; Harley v. Eleventh Ward Bank, 76 N. Y. 618). An account settled is one where the balance it exhibits has been paid or
The case shows another ground for reversing this judgment and ordering a new trial. When plaintiff gave his evidence it appeared that he did not deny drawing the checks which appeared in the pass-book he produced, but claimed that they were not the amounts for which he had drawn. His whole testimony on that point is as follows: “ Q. Will you turn to the account commencing July 11th, 1864, with a balance of $3.94.47? A. Yes, sir; I see it. Q. Now the figures on the right hand page. A. Well, the debit side. Q. It contains the checks which have been charged to you ? A. Yes, it contains the amounts. Q. The first twenty-three there—are those the checks which you claim were fraudulently entered by this bank ? Are those the charges which you claim were fraudulent ? A. The amounts are amounts for which I never drew them.” This testimony was regarded by the General Term of this court as not constituting a denial on plaintiff’s part that he drew the checks. “ The plaintiff does not swear that he did not draw these missing checks, his testimony being that the amounts are amounts for which he never drew them, leaving the inference that some unknown person had fraudulently altered them, for he avoids distinctly swearing that he did not draw the checks, which is subject to the suspicion suggested by the respondent that his testimony was guarded in this respect to avoid the hazard he might incur if the checks or some of them should be found and shown to be in his handwriting ” (8 Daly 506).
The testimony on the second trial was identical with that quoted above, for the printed testimony on the first appeal was read to the jury. The plaintiff, holding in his hand the statement of account which had been rendered to him, i. e. the pass-book, charging him with these twenty-three vouchers, and being cross-examined as to their correctness, put his objection to them on the sole ground that they were
The judgment should be reversed and a new trial ordered, with costs to defendant to abide the eve2it.
Van Hoesen, J., concurred.
Judgme2it reversed and new trial ordered, with costs to defendant to abide event.