Lewis v. Newcombe — 1 A.D. 59

Majority

p. 59

Maggie Lewis, Appellant, v. Ida M. Newcombe, as Executor, etc., of Richard S. Newcombe, Deceased, Respondent.

Headnote

Evidence—where some letters are received in evidence the whole correspondence is admissible ■—effect to be given to the letters — burden of proof as to a counterclaim.

Where letters passing between parties, one of whom has died, relating to a transaction which is the subject of an action, are introduced by both sides, it is the right of either party to introduce the entire correspondence.

Letters written by a deceased person are not evidence in behalf of his estate, when standing alone, of the facts stated in the letters, but they may properly be considered by the jury in connection with the rest of the correspondence and the conduct of the parties.

In an action brought to recover the balance of the proceeds of certain government bonds deposited with the defendant’s intestate, who was an attorney, the executor put in issue the amount of the plaintiff’s claim, and interposed a counterclaim for attorney’s services rendered by the deceased. The court, in the course of the charge, said, in effect, that the burden of proof upon the whole case was upon the plaintiff, and that she must establish her claim by a preponderance of evidence, but that, if the jury should find that the deceased had acknowledged his liability at a certain time for a definite amount, the plaintiff would be entitled to recover that amount, unless the defendant had overcome that state of facts by proof of an agreement or by proof of the services of the deceased as attorney, or by proof of other credits by way of payment.

Meld, that in substance the court had charged the jury that the burden of proof as to the counterclaim rested upon the defendant, and that the charge was, correct.

Appeal by the plaintiff, Maggie Lewis, from a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 4th day of April, 1895, upon the verdict of a jury, and also from the order entered in the office of the clerk of said court on the 15th day of April, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.

The action was brought to recover the balance of the proceeds of certain government bonds deposited with the defendant’s testator.

The defendant put in issue the amount of plaintiff’s claim and set up a counterclaim for attorney’s services, etc.

Airam Kling, for the appellant.

William H. Hamilton, for the respondent.

The appellant claims that the court erroneously admitted in evidence four letters of various dates in 1890 and 1891. The bonds were deposited with defendant’s intestate in 1883, but there was correspondence between the parties with reference to the matters in controversy during the years 1889,1890 and 1891. Many of the letters constituting the correspondence were put in evidence by the plaintiff and by the defendant without objection, and the letters objected to were properly received as forming a part of the same corresjiondence, in order that the jury might have the whole correspondence before them. The court, in receiving the letters complained of, and by its charge, upon the request of the plaintiff’s counsel, sufficiently protected the plaintiff as to the effect the letters should have upon the jury. The letters written by the testator were not evidence in defendant’s behalf, standing alone, of the facts stated therein, but might properly be considered by the jury in connection with the balance of the correspondence and the conduct of the parties. We are unable to see, under the circumstances, how these letters could have worked any injury to the plaintiff on the trial.

The appellant further complains of the instructions given by the court to the jury as to the burden of proof with reference to the defendant’s counterclaim.

The court, in the course of the charge, said, in effect, that the burden of proof upon the whole case was upon the plaintiff, and she must establish her claim by a preponderance of evidence, but if the jury should find that the defendant’s intestate had acknowledged his liability at a certain time for a definite amount, the plaintiff would be entitled to recover that amount, unless the defendant had overcome that state of facts by proof of an agreement (before referred to), or by proof of attorney’s services, etc. (being the counterclaim in question), or by proof of other credits by way of payments. At the close of the charge, the plaintiff’s counsel requested the court to charge that the burden of proof was upon the defendant to establish the counterclaim. The court replied that it liad substantially so charged; counsel said he did not think so, to which the court replied, I decline to charge otherwise than I have already charged. Plaintiff’s counsel later excepted to the charge that the burden of proof was upon the plaintiff upon the whole case.

p. 61

We are unable to see, looking at the whole charge, how there was any error committed by the court in respect to the burden of proof as to the counterclaim. The jury was instructed that such burden was upon the defendant.

We find no error in the record calling for a reversal of the judgment. The judgment should be affirmed, with costs.

Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs.