58 N.Y.S. 710 | N.Y. App. Div. | 1899
This action was brought to recover from the defendants a large .sum of money belonging to the plaintiff corporation which, it is alleged, the defendants received and appropriated to their own use. The defendant Arnold was the president, and the defendant Yoyer was the treasurer of the plaintiff from the organization of the plaintiff in June, 1893, to the 23d of March, 1896. They owned substantially all the stock of the corporation, and in March, 1896, they sold out the stock to other parties and respectively resigned their •offices. Arnold and Yoyer seem to have managed the business of the company, and a bookkeeper was employed for the purpose of keeping the books, in regard to which Arnold in no way interfered, •except in the single instance which will hereafter be referred to, and Yoyer simply gave occasional directions as to the account in which certain entries were to be made. At the time of the transfer of the stock in question by Arnold and Yoyer to the purchasing parties, the books of the corporation were inspected by the representatives of those parties, and a statement of the condition of the company was rendered. After an examination of these books and statement the purchase above referred to was made. In September, 1896, a demand was made upon the defendants for the sum of $23,321.69, claimed to be money received by the defendants and not accounted for by them.
Upon the trial of the case portions of the books of the corporation were introduced in evidence, and from the entries therein contained it was claimed that it had been established that the defendants had received certain moneys belonging to the corporation for which they had not accounted, and at the end of the case, the defendants having moved to dismiss the complaint, the plaintiff asked to go to the jury (1) on the facts of the case as they had been proved, and
The basis upon which the charge of $7,900 is made against the defendants seems to be entries upon the stubs of the check book showing certain moneys to have been drawn by the defendants, and it is sought to charge the defendants with these amounts, ini utter disregard of the additional entries made in the check book showing the purpose for which the money was drawn, and without any offer of evidence to show that the money was not appropriated to that purpose. In other words, the plaintiff claims the right to take that part of the entry which charges the defendants with the money, and to disregard that part which discharges the obligation. Now it is a familiar principle governing evidence by admission that the whole of the admission must be taken together, and that you cannot take the part which is pleasing to you and reject that which may be inconvenient. The claim upon the part of the plaintiff in regard to these entries is precisely the same as though these defendants had rendered an account of these moneys, acknowledging their receipt on the one side and claiming their disbursement on the other, and the plaintiff asserted the right to take the admission of receipt discharged from the accompanying allegation of disbursement. This has frequently been attempted but has never yet succeeded.
It appears from the evidence that every dollar of the money which was received upon the discount of the notes out of which this claim arises was placed to the account of the plaintiff in the various banks where the notes were discounted, and there is not a particle of evidence that any part of. that money has been appropriated by the defendants, except by showing that certain checks were drawn for certain purposes. Now, without evidence that the money was not devoted to the purpose for which it was drawn, there is certainly a defect of proof of conversion by the defendants.
The same may be said in regard to the item of $3,110, in respect to the entries constituting which item Arnold is shown to have had knowledge. It is sought to take the side of the account charging defendants with this amount without taking the side of the account crediting them therewith. This, as we have already seen, cannot be done. If the accounts are to be impeached, they must necessarily be impeached by showing their falsity and the connection, of each of these defendants with the delinquency. It is not sufficient to show that one or the other of them got the money. Mr. Arnold was not responsible for the wrongs of Voyer as against this corporation, if he committed any; neither was Mr. Voyer responsible for what Arnold did.
It is true that they were officers of the corporation, and that the moneys of the corporation were under their control. But in an action of this nature, charging directors and officers of a corporation
The only exception which it is necessary to consider at length is the exception to the refusal to admit in evidence the report of the Railroad Commissioners. We think, ppon the facts disclosed by the record, that the court was entirely right in excluding that voluminous document. The report was offered in evidence, it was objected to, and the court inquired of the plaintiff’s counsel what the record had to do with the question before the court, and the plaintiff’s counsel replied: “ It is an inconsistent statement with what the witness has said here on the witness stand.” The defendants’ counsel asked the court before that statement was taken, to have the counsel point out any inconsistent statement in the report. The court said: “ I think he is entitled to that. Plaintiff’s counsel: The result of the report is to show an entirely different state of facts from what the defendant stated on the witness stand. Defendants’ counsel asks to have the specific inconsistency pointed out. The Court: I think you have that right. Plaintiff’s counsel: Tour honor excludes it? The Court: Unless you point out how it is inconsistent.” Thereupon the objection was sustained. These reports constituted a document covering twenty-seven pages of the printed case. It seems to us that the court had the right, before admitting a paper of that kind in evidence, to require the counsel to point out the statements therein contained which were inconsistent with the testimony of the witnesses and which were material to the inquiry involved in the trial of the action.
Bakrett, Rumsey, O’Brien and McLaughlin, JJ., concurred. Judgment and order affirmed, with costs.