Wood v. Lawrence — 36 N.Y. St. Rep. 323

Majority

p. 323

Andrew Wood, App’lt, v. Peter Lawrence, Resp’t.

(Supreme Court, General Term, Second Department,

Filed Feburary 9, 1891.)

Headnote

Evidence—Secondary. - • '

Where the contract between the parties was left with the plaintiff and he has allowed it to leave his possession, it is his duty, upon receiving notice to produ.ce, to repossess himself of the instrument or be subjected to the admission of secondary evidence of its contents.

Appeal from judgment in favor of plaintiff for $200, entered upon verdict.

Action to recover $625 alleged to be due on a contract under which plaintiff was to build a house for defendant, $200 fox-money loaned and also for extra work.

The answer admitted the making of the contract, alleged a Breach thereof to his damage $800; denied the story of the extra work and admitted the loan. • The verdict was for the amount admitted to Be due.

Garrett Z. Snider, for app’lt; Tompkins & Bannister, for resp’t.

The questions of fact were submitted to the jury in a charge that was not excepted to. There was much conflict of evidence and we cannot say the verdict was erroneous.

The only serious question of law is upon the admission of secondary evidence of a paper signed by the parties and which defendant testified he last saw in the possession of the plaintiff.

Notice to produce had been given to the plaintiff. . The excuse for non-production was that plaintiff' had subsequently delivered it to a third party. The contract was between plaintiff and defendant and the written evidence of the contract was left in plaintiff’s hands. When he allowed it to leave his possession he took the risk of its non-production. The notice made it his duty to repossess himself of the instrument or be subjected to the admission of secondary evidence of its contents.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.