52 N.Y.S. 1064 | N.Y. App. Div. | 1898
This case presents a vivid illustration of the ingenuity developed and applied in the commission of criminal acts. It shows that, however numerous be the checks devised for the prevention and detection of irregular and criminal acts, the skill of the wrongdoer keeps pace with and outwits them. The misapplied ability which furnished the occasion for this action, rightly directed, would undoubtedly have brought to the individual abundant success and honor in an honorable employment. As is usual, however, it brought him disgrace and a prison. The plaintiff is a business man, the defendant a banking corporation. About 1894 the plaintiff employed one Marius J. Lamothe as his bookkeeper and cashier. In 1895 Lamothe began a series of forgeries of checks, drawn-by the plaintiff upon the defendant, with whom he kept his bank account. These forgeries appear to have begun in March-of that year, and continued until July of the following year before they were detected. The claim of the plaintiff is that the method by which the forgeries succeeded was this : For the purpose of obtaining the amount necessary for the payroll at particular times Lamothe furnished the plain- ' tiff with the items of the same upon a pad of paper, and thereupon, the plaintiff directed- Lamothe to fill up a check for the amount, drawn upon the defendant; when-the check was presented the plaintiff verified it, signed and indorsed it, and delivered it to Lamothe to-obtain the money ; the plaintiff retained the slip until he had verified its amount with the entries of the transaction in the petty cash boob, kept by the bookkeeper, when he destroyed it. This verification was usually made on the Monday following the drawing
It is further claimed that there was no competent' proof establishing the fact that the twenty-one checks were drawn and signed by the plaintiff for-.a less amount than that paid by the bank. The basis of this objection rests in the claim that the plaintiff had no recollection of any particular check aside from the entry of the amount and items in the books. Let us assume, what is the claim of the defendant, that there did not exist in the mind of the plaintiff an independent recollection of the transaction, or of either- or any of them, so far as related to the amount of the checks, either while looking at the books or after-; and we do not think, with this assumption, that the claim can be upheld. The examination fairly established that, at the time when the check was drawn, the plaintiff then knew its amount, verified it with the amount of the items it was drawn to pay, and thereafter saw that it was properly entered in the book, and examined the entry therein with the items and amount of the check before him, and was able, to testify that at the time of the entry it was correct, and that the present condition of the entry remained as originally entered. This, as we view the law, entitled the plaintiff to make use of the book for two purposes : First, to aid his recollection and, if from such examination he had a recollection independent of the book, to testify to such fact. This constitutes common-law evidence. (Bigelow v. Hall, 91 N. Y. 145.)
Second, adopting the claim of the defendant, as above stated, the witness was competent to testify, even though he had no independent recollection, and to read, in connection with his testimony, the entry itself. The rule is formulated in Howard v. McDonough (77 N. Y. 592) in these words: “ When a witness has so far forgotten the facts that he cannot recall them, even after looking at a memorandum of them, and he testifies that he once knew them and made a memorandum of them at the time, or soon after they transpired, which he intended to make correctly, and which he believes to be correct, such memorandum, in his own handwriting, may be received as evidence of the facts therein contained, although the witness has no present recollection of them.” This rule seems to arise out of the necoisity of the case, and is only available when the recollection fails. (National Ulster Co. Bank v. Madden, 114 N. Y. 280; People v. McLaughlin, 150 id. 365.) The above-quoted rule seems to limit its aoplication to a case where the witness has made the memorandum himself with his own hand. It is evident, how-, ever, that the reason of the rule admits of a broadér application. It must be equally reasonable that a witness might so testify with respect to a memorandum made by another. The essential fact is,
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.