1 N.Y.S. 467 | N.Y. Sup. Ct. | 1888
The ground of the defense upon the merits was, and the main contention on the part of the defendant here is, that there was no consideration to support the promise of the defendant expressed in the instrument sued on. As the appeal is from the judgment only, no question can be given consideration on this review other than such as was raised by exception taken on the trial. The defendant’s counsel asked for the direction of a verdict, which was declined, and exception taken; and a verdict was directed for the plaintiffs upon the request of their counsel, to which exception was taken. The question presented by the evidence was treated by the counsel as one of law only. It, therefore, is not important whether otherwise there may or may not have been a question of fact for the jury, as the court was permitted to dispose of it; and the only question presented by the direction of the verdict is whether the evidence was sufficient to support it. Ormes v. Dauchy, 82 N. Y. 448; Dillon v. Conkcroft, 90 N. Y. 649; Provost v. McEnroe, 102 N. Y. 650, 5 N. E. Rep. 795. The evidence tends to prove that the written promise was given by the defendant on account of a claim made by the plaintiffs against him by way of reimbursement for the expenses incurred by the county of Ontario for maintaining the father of the defendant in the Willard Asylum for several years. The father was insane. The defendant requested the superintendents of the poor to place him in the asylum. They did so, by proceedings regularly conducted for that purpose; and the count}' became chargeable to the asylum for the expense of his support and maintenance there. Laws 1874, c. 446, tit. 1, §§ 5,16; Id. tit. 4, § 6. And the evidence on the part of the plaintiffs tends to prove that, when the defendant made application to them to confine his father in the asylum, he said he, was not able to support him in full, but that he would reimburse the county to the amount of $50 a year, and that thereupon the superintendents agreed to and did take the requisite steps to transfer him-to the asylum, where he was taken and remained several years at the expense of the county. At common
It was formerly a rule of pleading, and such it probably is now, that where the consideration was executed, and the validity of the promise depended upon a previous request, such request should be alleged. Comstock v. Smith, 7 Johns. 87. The subsequent written agreement imports prima facie liability of the defendant to pay; and upon that the plaintiffs have, by their pleading, wholly placed their cause of action alleged. In view of the undisposed-of
The plaintiffs put in evidence, subject to the exception of the defendant, a statement in writing, subscribed by the county treasurer, purporting to be a detailed statement of the sums paid by the county for the support of the defendant’s father at Willard Asylum, with a like statement of rebate on his board there. The form in which the paper was made was waived by the defendant’s counsel, and the objection went to its competency in any form which it could be certified by that officer. The question, therefore, seems to be whether an exemplication made by him of the entries on his books in that respect would have been competent evidence. Our attention is called to no statute on the subject; and, although the question may not be free from doubt, we are inclined to think that a copy from his books, duly certified by him, would be proper evidence, upon the general rule that, when a public officer is bound to record a fact, a copy of the record of it, duly authenticated, is competent evidence, (1 Greenl. Ev. § 498;) and, when he may by law be required to make a report or return of his acts, a copy, in like manner certified by him, is proper as evidence, (Erickson v. Smith, 2 Abb. Dec. 64, 38 How. Pr. 454.) This officer is required to keep a true account of the receipts and expenditures of all moneys which come to his hands as such, in a book kept for that purpose, provided at the expense of the county. 1 Rev. St. 369, § 21. The moneys used for the purposes in question were expended by the treasurer, and it was his official duty to keep a true account of them in the book kept in his office. This evidence may not have been essential to the recovery had, but we are inclined to think that, in view of the waiver of the informality, the statement was properly received in evidence.
The judgment should be affirmed, and the plaintiff directed to amend, for the purposes of the record, the complaint in the manner above indicated.
Haight and Dwight, JJ., concur.