11 A.D. 456 | N.Y. App. Div. | 1896
The plaintiff in its complaint claims to recover of the defendant the sum of $3,127.12, with interest from the 21st of February, 1893,
Upon the trial the plaintiff offered in evidence its books of account, consisting of thirteen blotters and five journals: These were objected to by the defendant as incompetent and inadmissible and that the proper foundation for their introduction had not been laid. The objection was overruled and defendant excepted and the books were received in evidence. They contained the entries of debit and credit as contained in plaintiff’s bill of particulars and as found by the referee.
It is not now insisted by the respondent that the books of account as such were admissible. The plaintiff is a corporation and not in a position to get the benefit of the rule admitting the books of a merchant who has no clerk.
It is, however, claimed that the blotters, wholly or to a large extent, were admissible as memoranda made by the witness Aylesworth, and that his evidence in connection with such memoranda and the other competent evidence in the case is sufficient to sustain the judgment.
Aylesworth testified that he sold about eighty per cent of the goods and himself made the original entries. It is not clear that his evidence was sufficient to make his own entries competent evidence in the case. (Russell v. Hudson River R. R. Co., 17 N. Y. 134, 140.) Assume, however, that it was, there were entries to the amount of §1,000 and upwards that he could not verify. Kor does he specify the particular entries which he did make.
The business of the defendant, in which these goods were sold, was carried on by an agent. The court admitted in evidence, over defendant’s objection and exception, a statement or declaration of this agent as to the correctness of the entire account made by him on the 21st of February, 1893. The last sale claimed by the plaintiff was on the 28th of December, 1892. In January, 1893, the whole stock of goods in the business carried on by the agent was sold out and the business was apparently at an end. This the plaintiff
Aside from this admission, tlie evidence, to say the least, is very meagre as to the correctness of that part of the account not covered by the entries of the witness Aylesworth. There was no admission by the defendant himself of its correctness. Tie was entitled to have it proved, if. at all, by competent evidence. He is, I think, entitled to the benefit of his exceptions to the entire admission of the books and to the declarations of the agent. These rulings cannot be well said to have been innocuous.
The judgment should be reversed, the referee discharged and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed, referee discharged and a new trial granted, costs to abide the event.
