72 A.D. 565 | N.Y. App. Div. | 1902
I think that the plaintiff did not meet the rule of Vosburgh v. Thayer (12 Johns. 461) and Smith v. Smith (163 N. Y. 168), and that, therefore, the admission of the books was erroneous. ' The several witnesses testify that they settled bills rendered to them, which the plaintiff testifies were correct copies of the books, but none of the witnesses testifies that he settled his account by the books. In Matter of McGoldrick v. Traphagen (88 N. Y. 334) “ several witnesses testified that they had settled their accounts with the respondent and found them honest and correct, but had never seen the books,” and the court, per Miller, J., say: “ The bills settled, which were proved to haye. been copied from the books, were introduced in evidence, and the respondent’s bookkeepers testified that they Were copied .correptly from the books. One of them also swore that he had settled his own accounts with the respondent, by his books and to the best of his knowledge he kept honest books, and that he never heard anything to the contrary. Although the evidence of those who had settled from copies from the books which, were produced does .not strictly comply with thé rule stated as to this portion of the. proof, the. evidence of the bookkeeper who settled his accounts by the books supplied this defect, and he testified to all that was required within the authorities. The rule in regard to this subject. is that the party shall prove by those who have dealt and settled with him that he keeps fair and honest accounts. (Vosburgh v. Thayer, 12 Johns. 461.)” The plaintiff consented to the dismissal of the cause of action against the defendant as administratrix. The plaintiff failed to prove that, the defendant personally ordered any of the goods or that she ever promised to pay therefor. There was testimony that an employee of the plaintiff did deliver some chicken corn at the house of the defendant, and as to this item the defendant testified that although she never ordered it, her daughter did, and it was delivered. It appears that the conduct of the business was entirely in the hands of the daughter of the defendant, and that the plaintiff saw her on two occasions. The learned court refused, under exception, to permit the daughter to be asked:
The judgment and order, should be reversed and a . new trial granted, costs to abide the event.
All concurred; Hiesohbebg, J., in result.
Judgment and order reversed and new trial granted, costs to abide the event.
