Clark v. Bullock — 18 N.Y. St. Rep. 939

Majority

p. 939

Mary J. Clark, as Executrix, etc., Resp’t, v. Thomas S. Bullock et al., App’lts.

(City Court of New York, General Term,

Filed October 26, 1888.)

Headnote

1. Evidence—Written entries made by decedent—When competent as EVIDENCE.

In order to render competent as evidence written entries made by a person since deceased, it must be shown that they are original entries made by the decedent in the usual course of business at or about the time of the transaction to which they relate.

3. Same—Copies op written entries made by decedent are incompetent.

Copies of such entries made by another are not competent as evidence.

Appeal from a judgment entered upon the verdict of a jury rendered in favor of the plaintiff against the above named defendants on a trial had before Justice Pitshke, and a jury, and also from an order made by Justice Pitshke, denying defendant’s motion for a new trial.

This action was brought by the plaintiff as executrix, etc., of Benjamin S Clark, deceased, to recover the sum of $525, the amount of a promissory note bearing date March 20. 1886, made by defendant Slocum, payable three months after date, to the order of the defendant Bullock, and delivered to defendant Bullock, and alleged to have been endorsed by him before maturity, and delivered for value to

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Benjamin S. Clark, who died April 1, 1888, leaving a will. Letters testamentary thereon were issued April 29, 1888, to the said plaintiff. The complaint alleges the presentation of said note for payment by plaintiff and refusal to pay, the protest thereof and that no part thereof has been paid, etc.

The defendants, in their separate answers, each admit the making of the note, but deny the delivery of the note to Clark for value.

Defendants each allege, that the note was made by the defendant Slocum, and endorsed by defendant Bullock, and delivered to said Clark, at the request of Lemuel H. Wilson, upon the express understanding and agreement, made by and between the said Clark and the said Wilson, and by and between the said Clark and the said defendants, before the endorsement and delivery thereof, that the said Clark should within three months from the date of said note, organize a gas company to operate in the town of Gravesend, Kings county; and should obtain from the local authorities of said town, a license, etc., to lay ¡lipes, etc., and that said note should be held by said Clark, as collateral security for the payment by Wilson to Clark, of any, and all moneys that Clark should use or expend in obtaining the said license, etc., but that Clark did not, within the said three months, or at any other time, either organize the said company or / obtain such license.

The action came on for trial on April 9, 1888. Plaintiff’s counsel offered in evidence, letters of administration granted to Mary J. Clark, as administratrix, etc., of Benjamin g. Clark, and also the note in suit, the signatures of the maker and endorser being admitted, and rested his case.

After thé admission of the testimony of the defendants Slocum and Bullock, as to the consideration of the , note, and during the examination of defendant’s witness Charles A. Clark, the managing clerk of Benjamin S. Clark, up to the time of his death, for the purpose of showing the extent of the indebtedness of the Brighton Gas Company, of Wilson, and of the defendant Slocum, to said Bejamin S. Clark, a book was produced by plaintiff’s counsel to the witness, who after an inspection of the same, testified “ this is the book I entered the charges that Mr. Clark made in his day-book; it is a journal,"and is in my handwriting.” Witness further testified, that he found at page 388 and 389, an account with L. H. Wilson—that he could testify from his present memory, without looking at the book, as to the transactions between Clark and Wilson (folios 99 and 100).

After further testimony by the witness as to certain specific services rendered by Clark to Wilson, etc., the book was

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offered in evidence, and the ledger account with Wilson on pages 388 and 389.

The defendant’s counsel objected to the admission of the book in evidence as incompetent and irrelevant, and on the further ground that the witness had testified, that it was not a book of original entries.

Plaintiff’s counsel also offered the book in evidence, and the account therein with the Brighton Gas Company, at pages 428 and 429.

Defendant’s counsel objected to the admission of said accounts, on the same grounds as before stated.

The accounts were admitted in evidence, to which admission defendants’ counsel duly excepted.

Harris & Corwin, for resp’t; Edward Russell,for app’lts.

The journal and the accounts therein, as set forth as plaintiff exhibits, on pages 44 and 45, were introduced and offered in evidence, for the purpose of showing a consideration for the note in suit, and an indebtedness to the said Benjamin S. Clark, existing at the time the note was given, . plaintiff’s counsel stating that he “proposed to show how largely the company, and Mr. Wilson, and Dr. Slocum, were indebted to Mr. Clark at the time this note was given, by the attorney’s work, and by his books, for his services as attorney.”

The witness Clark testified that the accounts in the journal were in his handwriting, and were made by him from a day book kept by his employer; and also stated that he could testify from memory, without using the books for the purpose of refreshing his memory.

To constitute the entries in the ledger, made by the witness Clark, who was not a party to the action, competent evidence, such entries must be shown to have been made by the witness Clark in the usual course of business, and which entries it was his duty to make at or about the time of the transaction, viz., in the years 1884 and 1885.

Whereas it appears that such entries were made after the death of Benjamin S. Clark, and also that the witness Clark had competent knowledge of the fact, or that it must have been his duty to have known it. Greenleaf on Evidence, § 115; Gould, etc. v. Conway, 59 Barb., 355 ; Burke v. Wolfe, 38 N. Y. Supr. Ct. R., 264; Whitman v. Horton, 46 N. Y. Supr. Ct. R., 531.

The witness Clark testified, when shown the ledger: “That is the book that I entered the charges that Mr. Clark made iñ his ‘ day book.’ It is a journal, and it is in my handwriting.” When again shown the book he testified that the ledger was made up after Mr. Clark’s death (he ■died April 7, 1888); that Mr. James W. Barker made it.

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It was written up from Mr. Clark’s books of original entry.

The witness Clark having stated that he could testify as to the transaction without looking at the book, his testimony as to those transactions was competent evidence, and the book not being a book of original entries, was improperly admitted in evidence, and undoubtedly influences the minds of the jurors in determining what, if any, amount was due to Clark from the gas compay, and from Wilson, at the time the note was given, inasmuch as plaintiff’s counsel had stated that it was offered by him for the purpose of showing how large such indebtedness was.

Without considering the several other points raised on the part of the appellant, I think the judgment and order appealed from, for the reasons above stated, should be reversed, with costs, and a new trial ordered.

Nehrbas, J., concurs.