Coffey v. Lyons — 16 Daly (N.Y.) 207

Majority

p. 207

Thomas Coffey Respondent, against Jeremiah C. Lyons, Appellant.

(Decided June 2d, 1890.)

Headnote

In an action for work and materials, the answer denied that the work was done or the materials furnished at the time alleged in the complaint, and set up the statute of limitations. Held, that as the sale and delivery of the goods, and their value, as well as the value of the services rendered, were thereby admitted, permitting plaintiff, in testifying to the items thereof, to look at a bill which he had presented to defendant years before, and which he testified he had made within a month after the transaction, even if error, was not injurious to defendant.

The admission of such bill in evidence, against a general objection to it as incompetent, immaterial, and irrelevant, was not error, as the items were not disputed, and the date borne by the paper made it material, as bearing on the statute of limitations, to establish when the work was done; and it was competent for that purpose.

Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered on the verdict of a jury and an order denying a motion for a new trial.

p. 208

The facts are stated in the opinion.

Doherty, Durnin, and Hendrick, for appellant.

Anson Beebe Stewart, for respondent.

The General Term of the City Court having passed upon the questions of fact, they are not reviewable by this court (Bell v. Bartholomew, 12 Weekly Dig. 33).

The complaint was for materials sold and delivered to defendant and for work done, for him between January 1st and February 23d, 1884. The answer denies that the materials were furnished or the work done at the time alleged in the complaint, and also sets up the statute of limitations and pleads payment, thus admitting the sale and delivery of the goods and their value, as well as the value of the services rendered.

Notwithstanding these admissions, the plaintiff on the trial Undertook to prove the items of his claim, but could not, without looking at a bill which he presented to the defendant years before. This was objected to by defendant on the ground that the paper was not the best evidence, not being a copy from the books, as he claimed. But plaintiff testified that it had been made within a month of the transaction. After looking at the paper, the witness testified to the items, apparently from recollection ; at least the defendant did not object to the answer because he read from it. We think the case falls within the rules laid down in this court in Howard v. McDonough ( 8 Daly 365 ), affirmed by the Court of Appeals ( 77 N. Y. 592 ). But even if it did not, it could not have in-' jured the defendant by any possibility, because the facts thus sought to be established had been already admitted by the defendant in his answer.

Subsequently the witness testified that the bill was in his handwriting and had been made about a month after the work had been finished, and that it was delivered to the

p. 209

defendant. But he did not testify as to its correctness, nor that it was a true copy from his books; nor did he testify that he- could not remember the items after refreshing his recollection by looking at it. It was subsequently offered and received in evidence, under the general objection made by the defendant that it was incompetent, immaterial and irrelevant. This objection would have been good had the items contained in the bill been disputed, but, as before shown, they were not, and the only value of the paper as proof was the date which it bore. Plaintiff had sworn that the identical paper had been delivered to defendant years before, and it was certainly material as bearing on the statute of limitations to establish the date when the work was done, and we think was competent for that purpose and that only. There was therefore no error in admitting it in evidence in this case.

These being the only questions of law presented to us either by the brief or oral argument of counsel, the judgment should be affirmed, with costs.

Larremore, Ch. J., concurred.

Judgment affirmed, with costs.

Cases cited

Howard v. McDonough 77 N. Y. 592 N.Y. 1879-04-08 p. 208