Philbin v. Patrick — 6 Abb. Pr. 284

Majority

p. 284

PHILBIN against PATRICK.

Court of Appeals ;

January Term, 1868.

Headnote

Evidence. —Reading Memorandum. —Case. —Exceptions to Referee’s Report. .

In an action for materials furnished, it is proper to ask the witness to produce the book containing his original entries of the items, and read the same, it being subsequently shown that he was unable to state them from memory, and that the articles were delivered.

On appeal to the court of appeals from a judgment on the report of a referee, the findings and exceptions thereto must be incorporated in the case, either actually or by reference thereto. It is not enough that the findings and exceptions'be printed in the appeal papers.^[1]

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Appeal from a judgment.

This action was brought in the superior court of New York by Stephen Philbin and Joseph P. Quin against Richard Patrick, to recover for labor and materials in the plumbing work in a house of the defendant.

Upon the trial before Charles Peabody, Esq., referee, Mr. Knight, the bookkeeper of the plaintiffs, was called and sworn as a witness. After stating that the plaintiffs had two day books, into one of which entries were taken off from the scrap book, and then transferred again into the other, the witness was asked to take his scrap book and begin at the beginning, and call off all the items entered by him on this job. Against the defendant’s objection and exception, the witness was then permitted to read from the scrap book the items charged there in his writing. He was subsequently asked if he recollected delivering the articles thus specified, and he replied that he could not say definitely now that he did; that he was able to state what articles he delivered from having made the charges in the scrap book.

The referee having found in favor of the plaintiffs, and judgment having been entered, the defendant appealed to the court at general term, where the judgment was affirmed ; and he then appealed to the court of appeals.

The appeal book contained the summons, pleadings, order of reference, report of referee, and judgment thereon ; following these was the case made by defendant, and

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the exceptions taken by him to the referee’s findings both of fact and law. The report or findings of the referee, and the exceptions, were printed, not as a part of the case, bnt before and after it, with no reference made to either of them in the case, except the statement in the conclusion of the case, that “after the trial the referee made his report, to set aside which the defendant has made this case.”

J. B. Bis sell, for the appellant.

There was no foundation laid for the admission of the scrap book of the plaintiffs in evidence. It was not proved in such manner as to entitle the books of a party to be read. It was not asked for by witness to refresh his memory (Lawrence v. Barker, 5 Wend., 301 ; Ferter v. Heath, 11 Id., 485). It did not appear that witness was wholly unable without its aid to speak from memory as to the facts therein stated ; nor was its accuracy verified by his oath (Halsey v. Sinsebaugh, 15 N. Y., 485 ; Russell v. Hudson River R. R. Co., 17 Id., 140).

S. Hand, for the respondents.

This case was tried before a referee, who reported in favor of the plaintiffs for $1,427.17.

The case does not contain the referee’s report, or the exceptions to the report, and in this respect is not in conformity with provisions of the Code, and the practice in such cases. In Otis v. Spencer ( 16 N. Y., 610 ), it was held that the findings of fact, and conclusions of a referee, must be stated in the case itself, and that this court will not look for them elsewhere.

It appeared that there was no case or exceptions in the case cited, and hence it differs somewhat from the one before us. But the same principle is applicable, and there being no finding, of facts, or exceptions to the referee’s report referred to or incorporated in the appellant’ s case, there is nothing to review here. All the judgment, for that reason, must be affirmed.

Independent of the reason stated for the affirmance of the judgment, I think there was no error upon the

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trial. The objection made to allowing Knight, the plaintiffs’ bookkeeper, to read from the scrap book the list of articles there named, and delivered to the workmen from plaintiffs’ shop, is not well taken. The book was competent evidence, preliminary to proof, that materials were furnished by the plaintiffs to the defendant.

The witness testified that the entries were made when • the articles were delivered to the carmen, in the course of his business as bookkeeper of the plaintiffs.

He did not recollect the delivery of the articles, and was only able to state what articles actually were delivered, from having made the charges in the scrap-book.

They were made at or about the time of the transactions to which they related, and their accuracy was duly verified.

It also appeared that the witness was unable, with the aid of the. memorandums made by him, to speak from memory as to the facts.

The evidence, therefore, was properly received. The rule is laid down in Halsey v. Sinsebaugh ( 15 N. Y., 488 ), and approved in Russell v. Hudson River R. R. Co. (17 Id., 140). See, also, Guy v. Mead (22 Id., 462); Marcly v. Shultz (29 Id., 346); Hynds v. Shultz ( 39 Barb., 600 ).

It may be also observed that the fact of the delivery and the use of the articles was fully proved by the evidence subsequently introduced, and if there was any error, it was rendered entirely harmless, and could not affect the result, or work an injury to the defendant (People v. Gonzalez, 35 N. Y., 49 , 60). Nor was there any error in the introduction of the bill of work done and materials furnished by the plaintiffs for the defendant.

Both of them had been furnished to the defendant; and in connection with proof of the correctness of the charges made, and a conversation with the defendant as to one of them, they were properly received as evidence.

The judgment must be affirmed.

All the judges concurred in affirming the judgment.