Healey v. Bauer — 47 N.Y. St. Rep. 499

Majority

p. 499

James I. Healey et al., Resp’ts, v. Moritz Bauer, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Evidence—Book entkies.

In an action for work, labor and services, entries in the plaintiffs’ books of account made by a deceased employee some months after the work is claimed to have been done, and shortly before the action was commenced, are inadmissible.

Appeal from judgment in favor of plaintiffs, entered upon report of a referee.

Maurice Untermeyer, for app’lt; Francis C. Devlin, for resp’ts.

—The plaintiff seeks to recover of the defendant for work and labor and materials furnished -by him to the defendant at his request. The proof tended to establish the fact that Bauer sold a lot of land to one Emench and took a mortgage back for the whole purchase money ; that Emench started to erect houses on the land and, before they were completed, re-conveyed the property to defendant. The plaintiff produced evidence tending to show that the defendant at the reconveyance and as part of the consideration promised to pay the plaintiff for that- portion of the work done before the conveyance by Emench to defendant. The defendant denied this statement. The plaintiff produced a book in which an entry was made by Mr. Roberts, a deceased employee of plaintiff. The book was a journal in which the plaintiff made his charges for work done and materials furnished. The book was received in evidence against the objection and exception of the defendant, and there was read from it as follows:

“ Brooklyn, Jany. 20th, 1882.

“ Mr. Bauer, iron work for houses on 86th st, iron work as per contract for stores corner of Third avenue, 69th and 70th sts., $4,000. Extra work for Third ave., 69th and 70th sts., as follows : Extra vault light in front, $784; extra railing on two walls, $252; extra railing on two gable ends, $24; extra window guards, two gable ends, $68 ; extra cellar door bars, $18 ; extra drilling columns, and other work, $4; extra door saddles, $36. Total, $5,577. By flue rings and covers not finished, $21. $5,456.’’

The evidence showed that one of the defendants’ counsel asked the plaintiff to produce the book, and he examined it before it was offered in evidence. The evidence was improperly received. Smith v. Bentz, 42 St. Rep., 879 .

The entry was not made in the book until shortly before the action was commenced, and some months after the work was done.

p. 500

The judgment should therefore be reversed and a new trial granted, costs to abide event.

Cullen, J., concurs; Dykman, J., not sitting.