People ex rel. Johnson v. Lord

67 Barb. 109 | N.Y. Sup. Ct. | 1874

By the Court, Mullin, P. J.

The judgment of the justice must be reversed, for the reason that parol evidence of the contents, of the writing extending the term ^of the tenant for two years from the expiration of the original lease, was improperly received.

The respondent’s husband not only had access to the drawer in which the paper was last seen, but he took from it, and destroyed, papers that were in the same drawer, and he was not called to show that he destroyed the paper, nor but that he took it, and has it still in his possession.

To authorize the introduction of secondary evidence of a writing, it must clearly appear that it is in the possession of the opposite party, or that it is lost or destroyed. (2 Cowen & Hill’s Notes, 1215.)

When it appears that the party offering the parol evidence would have an interest in getting rid of the original paper, in order to introduce secondary evidence of its contents, it requires the clearest proof of loss. (2 Cow. & H. Notes, 1216.) If he destroys it voluntarily, for some fraudulent purpose, the clearest proof of loss or destruction will not entitle him to give the secondary evidence. (Id., 1216.)

[Fourth Department, General Term at Rochester, April, 1874.

The paper in question was highly important. Upon it depended the plaintiff’s right to remain in possession. By its loss the relator was deprived of the right to dispute its genuineness or its legal effect upon the rights of the parties.

Without intending to intimate that we think there was a fraudulent possession of the paper, we are not satisfied with the proof of either the loss, or destruction, of the paper.

The proceedings and judgment of the justice are reversed, with costs.

Mullin, E. D. Smith and Gilbert, Justices.]