11 N.Y.S. 239 | N.Y. Sup. Ct. | 1890
This is an appeal from the judgment of the county court of Albany county, affirming a judgment of a justice of the peace. The action was for work and labor. The answer admitted the plaintiff's claim, and set up, by way of set-off or counter-claim, an account for goods, wares, and merchandise sold and delivered by defendant to plaintiff. On the trial before the justice, the defendant claimed and was awarded the affirmative of the issue, and, to establish his counter-claim, proved that he was a merchant, and as such sold and delivered goods to the plaintiff, some of which were delivered to plaintiff’s wife and children. The plaintiff's claim, as alleged and proved, amounted to $96.39, which was not controverted by the defendant. The defendant’s account, as claimed, amounted to $88.68, some of which was for Intoxicating liquors. It seems substantially conceded by the learned counsel on either side that $5 was deducted by the justice for liquors embraced in the account, and the balance of $83.68 allowed and deducted from the plaintiff’s claim of $96.39, leaving a balance of $12.71 in favor of the plaintiff for which the justice rendered judgment with costs. The evidence shows that the defendant, his niece, Annie Moan, and her sister, Mary Moan, delivered goods to the plaintiff and his family. Annie was his book-keeper, and made all of the entries in the book of account put in evidence. Hone of these persons (who were all sworn as witnesses) could state the specific articles delivered by them. AVhen items were delivered by the book-keeper, she made the entries upon the book direct, and when delivered by the others the practice was to enter them on slips of paper and place them on the desk, and the bookkeeper would enter them on'the book. The defendant proved by one witness
It is true that the objection was not specifically taken that the proper foundation had not been laid for its introduction; but it was objected to as incompetent, illegal, and improper, and it is quite apparent that no form of objection could have enabled the defendant to have supplied the proof necessary to make this book competent evidence within the established rules of law allowing books of accounts as evidence. Before parties were permitted to ba witnesses in their own behalf, books of account of a party who kept no clerk were admitted from necessity, where they were verified and authenticated in a given way; and the method of authentication was definitely stated in Vosburgh v. Thayer, 12 Johns. 462, and that rule has been rigidly adhered to, where books of account have been offered as evidence of the transactions of parties, as distinguished from memoranda to refresh the recollection of witnesses. To make books competent evidence under that rule, the party seeking to use them must prove, (1) that the party keeps no clerk; (2) that some of the articles charged in the account have been delivered; (3) that the books produced are the account books of the party; (4) he must prove by some witness who has dealt with him, and settled with him from such books, that he kept fair and honest accounts; upon such proof the book became competent evidence for the consideration of the court or jury. This rule has not been changed or relaxed by any of the legislation making parties competent witnesses in their own behalf, or by any judicial determination to which our attention has been directed. In Knight v. Cunnington, 6 Hun, 100, it was held that the books of a physician were not competent evidence for him' unless he first prove the entries were made by him, that he kept correct books, and that others have dealt and settled with him from these books. In Gould v. Conway, 59 Barb. 355, it was held that, where entries were reported by a salesman and entered by a book-keeper on the book, the book did not prove the entries unless verified by the evidence of the salesman in connection with the book. In Ives v. Waters, 30 Hun, 298, the rule laid down in Vosburgh v. Thayer, supra, was reaffirmed, and it was held that books of account were not competent evidence when one-fourth of the entries were in the plaintiff’s' handwriting, and three-fourths in that of a clerk. In Beatty v. Clark, 44 Hun, 126, the court says:. “To enable a party’s own book of accounts to be-put in evidence in his favor, the rule as stated Vosburgh v. Thayer, 12 Johns. 462, and as it still exists, is that a foundation must be laid for their admission by proving that he had no clerk; that some of the articles charged had-been delivered; that the books produced are the account books of the party; and that he keeps fair and honest accounts; and this must be done by those who have dealt and settled with him.” Many of these conditions have not been, and could not be, complied with in this case, Rs the defendant kept a clerk, and the books were not in his handwriting, nor was any portion of the same. But it is urged by the learned counsel for the respondent that the books in this ease were competent evidence under the decisions in Krom v. Levy, 1 Hun, 171; Mayor, etc. v. Second Ave. 11. Co., 102 1ST. Y. 572, 7 MY E. Rep. 905; Halsey v. Sinsebaugh, 15 N. Y. 488; Russell v. Railroad Co., 17 N. Y. 140; Philbin v. Patrick, 6 Abb. Pr. (N. S.) 287; and Marcly v. Shults, 29 N. Y. 346. But in these eases, the books and the entries were used as memoranda to refresh the recollection of witnesses who made or were cognizant of the entries at the time they were made, and could swear that they knew them to be correct when made. In such case, it is the re
In all these cases it will be observed that the book was only received to refresh or verify the recollection of the clerk or book-keeper, and they do not come within the principle under which books of accounts are made competent evidence for a party in his own favor. Hor do we see that they in any way disturb or trench upon the well-settled rules so long established for the admission of books of accounts as evidence. We think their admission was error, for which the judgment of the county court and that of the justice should be reversed. Judgment reversed, with costs.