13 Misc. 634 | The Superior Court of the City of New York and Buffalo | 1895
Lead Opinion
This action was commenced by the service of a summons on the 20th of September, 1894, and is brought to recover on a promissory note and book account assigned to plaintiff by one Charles Buscher. The complaint is quite informal, and alleged in general terms on an account for goods sold and delivered to defendant by Buscher, and assigned to plaintiffs, and its amount. The defendant answered by a general denial and plea of payment. The proof is undisputed that the account was not assigned to plaintiffs until September 2oth, five days after the service of the summons. The answer put every fact in .issue which it was essential for plaintiffs to establish in order to authorize a recovery, and included the present right of recovery at the commencement of his action. Mack v. Burt, 5 Hun, 28; Griffin v. Railroad Co., 101 N. Y. 348, 4 N. E. 740; Follmer v. Frommel, 63 Hun, 370, 18 N. Y. Supp. 318. Plaintiff seeks to avoid this result by the claim that defendant was either -required to demur or answer specially, and, further, that as no objection was taken upon the trial raising the question it was waived. ■It is clear that no demurrer would lie, for the complaint stated a good cause of action. No defect appeared which required any other answer than the one interposed. The defect was of evidence, and defeated plaintiff’s claim. There was no waiver. Cases which hold that a right is waived for lack of objection only apply where the defect could or might have been supplied if an objection had been interposed, or where it appears that the party intended to waive it. Here the objection could not have been obviated, and there is nothing which shows an intention to waive it. The record discloses that the case was tried and submitted to the judge, and there is nothing upon which a waiver of the question could be predicated more than could be the waiver of any other branch of his defense. He stood insisting that there could be no recovery against him, and plaintiff was required to make his entire case, of whicji ownership was a part.
I am also of opinion that error was committed in admitting the account books in evidence. Attempt was made to supply proof required, but, as I view the case, it falls short of what the authorities require. So far as Deck’s testimony is concerned, it only showed that upon one occasion Buscher presented him with a bill, which he found correct, and which he paid. But it is not pretended that he saw the books or settled from them, and they were not present when the bill was presented and paid. Testimony of this character was pointedly condemned in Beatty v. Clark, 44 Hun, 126. The testimony of Pries, a workman, does not answer to supply the defect. His testimony is that he was paid every week, that he knew how much was due, that he had seen Buscher refer to a book, but that he never did, as it was not necessary, for he knew how much he was entitled to. This falls short of the proof which received support in McGoldrick v. Traphagen, 88 N. Y. 337, and is not suffi
The judgment appealed from should be reversed, with costs.
WHITE, J., concurs.
Dissenting Opinion
I cannot concur with my associate in the conclusion reached by him. But two questions are raised on this appeal. The first relates to the sufficiency of the plaintiff’s proof to authorize the introduction of the plaintiffs’ assignor’s books of account in evidence. From the return it appears that Charles Buscher was a plumber, engaged in doing business in this city, and assigned to the plaintiff the account for which this action was brought. It also appears that Buscher had regular dealings with defendant, extending over quite a period of time; that he had no clerk, and made the entries in the book himself; that he delivered to the defendant a portion of the goods sold, and rendered some of the services charged; and, from two parties who had settled with him on these books, that they were correct and honest books of account. Upon this last proposition the defendant claims that there was no evidence that any person having an account with Buscher had settled with him from these books. The evidence is confined to the testimony of two witnesses. Witness Deck testifies that he did business with Buscher, and that he settled with him on an account rendered, and that the account was correct. Buscher himself testifies that he kept an account with Deck in these books, and that a true and exact copy of Deck’s account was made from the books, and that he gave it to him, and on this account Deck settled and paid him the amount. The witness Pries, an employé, whose account was kept in this book, says, in substance, “he is paid by the week, and his account is kept in the book; that he has settled with Buscher and received his pay, and at the time of such settlement Buscher looked at the account in the book,” and that it was always correct. This is the only evidence introduced for the purpose of showing that the books of Buscher were honest books of account, and I think- it was sufficient, under the rule adopted by the courts, to admit these books of account in evidence. Vosburgh v. Thayer, 12 Johns. 461; McGoldric v. Traphagen, 88 N. Y. 337.
The question that the action was prematurely brought is now raised for the first time. The written assignment of the account of Buscher to the plaintiffs bears date the 25th day of September, and the action was commenced by the service of a summons on the 20th day of the same month, and the assignment is written on the bill of particulars, but it does not appear to have been read in evidence on the trial. The witness McCracken gives the only testimony relating to the assignment. After stating that the note and account had been assigned to the plaintiffs, he says he cannot give the exact date; but on being referred to the bill of particulars he says: “It was on September 25th;” evidently having been shown the date
I therefore think that the judgment should be affirmed, with costs.
