Lucas v. Thompson — 27 N.Y.S. 659

Majority

p. 659

(75 Hun. 584.)

LUCAS v. THOMPSON et al.

(Supreme Court, General Term, Second Department.

February 12, 1894.)

Headnote

Evidence—Book Entries.

In an action for wages alleged to be due from defendant’s testator, charges against plaintiff in one of testator’s books, which was mainly kept by plaintiff, and to which plaintiff had access at all times, are admissible in evidence.

Appeal from judgment on report of referee.

Action by Charles A. Lucas against S. Gr. Thompson and Oliver H. Nickerson, as executors of Oliver B. Lucas, deceased, to recover for wages alleged to be due plaintiff from defendants’ testator. There was a judgment in favor of defendants, and plaintiff appeals. Affirmed.

Argued before DYKMAN, PRATT, and CULLEN, JJ.

Timothy M. G-riffing, for appellant.

Thos. F. Bisgood, for respondents.

This judgment might well be affirmed on the opinion of the able referee before whom the case was tried. He saw the witnesses, and heard them testify, and had a better opportunity to judge of their credibility than an appellate court can have from reading the testimony. It is very clear, from reading the case, that there is no such preponderance of evidence in favor of the plaintiff as will authorize a reversal of the judgment. Neither are there any exceptions disclosing error to the prejudice of the plaintiff. Indeed, the fair inference from the ledger is that plaintiff was fully paid for his labor, and this was the most reliable evidence there was in the case. The plaintiff neither established the amount of his wages, nor the time that he worked.

p. 660

The evidence of declarations made by the deceased father of the plaintiff was properly excluded, as they had no relevancy in proving a contract, or any amount due to the plaintiif. The same may be said of the exclusion of the question to Anna Lucas as to whether “Mr. Buck assisted in the furniture business.”

Another objection related to charges on the book for payments of taxes, etc.,—that no order or authority from the plaintiff was shown for such payments. It is to be noticed that the book was one that was mainly kept by the plaintiff; was one to which he at all times had free access, and in which he made charges and credits. This fact also answers the exception to the admission of the book in evidence to show the state of plaintiff’s account.

We are unable to discover any error of law or fact in the report of the referee. Judgment affirmed, with costs. All concur.