14 N.Y.S. 612 | N.Y. Sup. Ct. | 1891
This is a claim against the estate of Walter W. Winn, referred under the statute. The referee reported in favor of the plaintiff, and the defendant appeals. Two questions are raised,—the first, that the referee admitted evidence inadmissible under section 829, Code Civil Proc.; the second, that he excluded evidence under section 834 which was admissible. The plaintiff was called on his own behalf. A memorandum book of the defendant was produced by defendant. The plaintiff testified that he saw the book in Winn’s house, and that Winn and Fred Winn, the son, was present; that he saw pages 16 and 17, and saw the figures put on those pages; that Fred Winn put them on, and that his father was present; that he also saw a “blank leaf” paged 213 and 214; that he himself put the figures on that paper in presence of Winn and his son Fred; that Fred and plaintiff at that time compared the figures on pages 16 and 17 with those on plaintiff’s book, the number of cords of wood, and how much they came to; that Fred Winn read the figures off aloud; that Winn directed Fred to put the figures down in the book in plaintiff’s presence, that book being plaintiff’s book; that on comparing the two hooks—that is, plaintiff’s book and defendant’s book and the “blank leaf”—the figures corresponded. The two books were then given in evidence by plaintiff. The referee found that these entries, specifying them, were made by Fred Winn in the presence and by the direction of the