Coffey v. Lyons — 32 N.Y. St. Rep. 66

Majority

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Thomas Coffey, Resp’t, v. Jeremiah C. Lyons, App’lt.

(New York Common Pleas, General Term

Filed June 2, 1890.)

Headnote

1. Evidence — Memoranda.

In an action for goods sold and work done the answer denied that they were done and furnished at the time alleged, set up the Statute of Limitations and plead payment. Plaintiff on the trial was unable to prove the items of his claim without looking at a bill which had been presented to defendant years before and which he testified was made within a month of the transaction, and was allowed to refer to it and then to testify to the items. Held, no error.

3. Same — Limitation.

Plaintiff testified that the bill was made out about a month after the work was finished and that it was delivered to defendant; but he did not testify to its correctness; nor that it was a true copy from his books; nor that he could not remember the items after refreshing his memory by looking at it. Held, that the bill was competent evidence for the purpose of establishing the date when the work was done as bearing on the Statute of Limitations, and for that purpose only.

Appeal from a judgment of the general term of the city court, affirming a judgment entered on the verdict of a jury in favor of plaintiff.

Doherty, Durnin & Hendrick, for app’lt; Anson Beebe Stewart, for resp’t.

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 Wk. Dig., 33.

The complaint was for materials sold and delivered to defendant and for work done for him between January and February 23, 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 injured the defendant by any possibility, because the facts thus sought to be established liad been already admitted by the defendant in his answer.

Subsequently the witness testified that the bill was in his

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handwriting, and had been made about a month after the work had been finished, and that it was delivered to the 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 memory 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 agument of counsel, the judgment should be affirmed, with costs.

Larremore, Ch. J., concurs.