State National Bank v. Weed

it to one Mason on account of an indebtedness arising upon a contract for work on a tunnel in Virginia; that Mason deposited the note with the plaintiff for collection, or as security for an overdue claim of the plaintiff against Mason. Or, in a, few words, the defense is that the paper was diverted, and the plaintiff is not a bona fide holder of it. On the trial the defendant, Weed, showed his original relation to the paper as indorser, the purposes of the indorsement, and the facts of the alleged diversion. Thereupon the plaintiff undertook the burden of showing the circumstances under which it became possessed of the note, and its right to enforce it against Weed. The plaintiff’s cashier was the witness called to prove the bank’s version of the transaction. He swore, in substance, that Mason was indebted to the bank for a discount in a sum largely exceeding the amount of the note in suit; that it held on December 28, 1894, certain securities collateral to that indebtedness, and among them shares of the capital stock of the Kentucky Building & Loan Association; that those shares were worth par; and that on the day mentioned the bank surrendered them, by agreement, to Mason, and in substitution therefor took the note in suit. On cross-examination of this witness, it was shown that on a former trial of this action he had sworn positively to an entirely different state of facts relating to the consideration given by the bank for this note. He was confronted with his testimony on that trial, and admitted that he had then sworn that the note in suit was given by Mason on an increase from $6,000 to $9,000 of a loan by the bank to Mason, and for which it held Mason’s personal note. With this glaring contradiction confronting him, the witness endeavored to explain that he testified on the first trial impulsively and ignorantly,—an excuse which prevailed with the jury. But the plaintiff was permitted to fortify the version given by this witness on the trial now under review by introducing in evidence a memorandum appended to the note Mason made, and gave for his indebtedness to the bank, and which was a renewal of a previously discounted note for $9,000. Thát memorandum was identified by the cashier alone, and he swore that he made it at the time it bears date. In no aspect of the case was it competent evidence. Mason’s renewal note held by the plaintiff' is dated November 13, 1894. At the foot of it is a ■statement, signed by Mason, that certain collateral is pledged with the note, including “twenty shares Kentucky Building & Loan Association,—par value, $2,000.” Following that is this memorandum, viz.: "Dec. 28, 1894. It is, was, agreed to allow Mr. Mason to withdraw 20 shares B. & L. stock, and substitute a note of N. E. Beed, payable to - Weed, for $2,000. H.” The initial is that of the cashier,—the witness spoken of. This memorandum was read in evidence, under objection to its competency, and an exception to the ruling admitting it. . It was plainly incompetent as evidence of the facts mentioned in it. The witness had sworn to them from his own knowledge and memory. His written declaration was at best but secondary evidence, to which resort could be had only when he could not remember the facts without its assistance, and it is not part of the res gestae. Bank v. Madden, 114 N. Y. 280 , 21 N. E. 408 ; Griesheimer v. Tanenbaum, 124 N. Y. 650 , 26 N. E. 957 ; Hicks v. Assur

anee Co., 13 App. Div. 448 , 43 N. Y. Supp. 623 . As this memorandum was not competent evidence of what is stated in it, it could not be admitted simply to establish the credibility of the witness. It is nothing more than his own writing, vouched for by no one but himself, and invoked to reinforce his own positive oral testimony. To what results the allowance of such evidence would lead must be apparent to every one.

The judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.