Hyperlawhypertext legal database Metropolitan Life Insurance v. Callan 23 N.Y. St. Rep. 629

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Metropolitan Life Insurance v. Callan

23 N.Y. St. Rep. 629 Court N.Y.C.P. Decision date 1889-04-01 English

Delivered by Van Hoesen, J.

Contents

Majority

p. 629
The Metropolitan Life Insurance Co., App’lt, v. Edward Callan, Resp’t.
(New York Common Pleas, General Term,
Filed April 1, 1889.)

Headnote

Principal and surety—Insurance agents—Bond—Evidence.
Where the bond of an insurance agent provided that the total amount of
p. 630
the weekly premiums in the life policy register after deducting the total weekly premiums in the lapsed policy register, were to he debited to the agent’s account each week, and that the balance should be considered as having been absolutely received by him for the company, and that the latter should not be bound to prove that the agent had received the premiums of each policy holder, in an action on the agent’s bond for a default, Held, that the books kept by him and accounts rendered by him in the course of his official duty, were admissible against his surety.
Motion for re-argument. For opinion on former hearing, see 22 N. Y. State Rep., 43.
George E. P. Howard, for app’lt; Early & Prendergasty for resp’t.

See Wharton on Evidence, § 1212, and cases cited.

The book (Exhibit 0) which Lane kept, and the accounts rendered by him in the course of his official duty (Exhibit D), were both competent evidence against the surety. They were a basis from which the amount of Lane’s indebtedness could be obtained by calculation. They were properly received in evidence. Then Lane swore on cross-examination that whatever he had received he had paid over to the plaintiff.

The only question in this case is: Was the justice warranted in holding this general and sweeping statement sufficient to overcome the written evidence contained in the two exhibits, C and D, and the result of the calculations made upon said exhibits ?

If the justice was wrong in accepting Lane’s statement, that he has paid over all money that he had collected, then there should be a re-argument.

But whether there should be a re-argument or not, we cannot' stand by the former opinion of the general term, which is clearly erroneous in holding that Exhibits 0 and D were not evidence against the surety.

The cases, as well as section 1212, Wharton on Evidence, make it plain that these exhibits are admissible against the surety.

Daly, J., concurs. _

Footnotes

  1. 1 Affirming 14 N. Y. State Rep., 866. 8 See former appeal, ante, 599.