Dusenbury v. Hoadley — 49 N.Y. St. Rep. 560

Majority

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Whitmore Dusenbury et al., Adm’rs, App’lts, v. Aubert D. Hoadley, Resp't.

(Supreme Court, General Term, Fourth Department,

Filed December 9, 1892.)

Headnote

Bills and notes—-Evidence.

In an action on a note alleged to have been made by defendant and delivered to plaintiffs’ intestate, the defense was a general denial. One of the plaintiffs, as a witness in his own behalf, was shown a book and testified that it was the cash-book of deceased, in which he kept, in hisown handwriting, an entry of cash paid out by him, and for money paid by him upon notes bought or discounted. Plaintiffs then offered in evidence the book at a certain page and line, under a certain date, showing cash paid for H. note, the defendant’s, at its face value, and in the handwriting

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of deceased. It was objected to as incompetent, and the objection sustained. Held, that the book was not competent as an account book, and besides the rule as to account books does not apply to cash transactions such as this.

Appeal from a judgment entered in Broome county on 17th March, 1892, upon the report of a referee dismissing the complaint.

The action is upon a note. In the complaint it is alleged that the defendant made and delivered to the plaintiffs’ intestate in his life time a promissory note dated October 20, 1885, for $150, payable one yfear after date “ to the order of Harper Dusenbury or bearer,” for value received with use, and that after the death of George Dusenbury the note came into the possession of plaintiffs as one of the assets of the deceased, and that they are now the lawful owners and holders thereof, and that no part has been paid. The answer was a general denial.

The referee found that the note was never delivered by the defendant or by his authority, and that as the plaintiffs did not show that their intestate was a purchaser in good faith and for value, they could not recover.

E. C. Moody, for app’lt; H. S. Williams, for resp’t.

Upon the trial of this action it became important for the plaintiffs to show that their intestate paid value for the note. Whitmore Dusenbury, one of the plaintiffs, being upon the stand as a witness in behalf of the plaintiffs, a book was shown to him and he testified as follows : “ This is the cash book of George Dusenbury in which he kept, in his own handwriting, an entry of cash paid out by him, and for money paid by him upon notes bought or discounted by him.” Plaintiffs then offered in evidence “ the book page 105, third line from the bottom of the page, under date of October 20, 1885, showing 1 cash paid, A. D. Hoadley note, $150,’ in handwriting of George Dusenbury, deceased.” Tins was objected to as incompetent and immaterial and hearsay, and a memorandum by intestate in his own favor and improper. The objection was sustained and plaintiffs excepted. This ruling the plaintiffs claim to be erroneous.

The case shows that Dusenbury died in 1890, then being an old man and having done no business himself after 1888 ; -that he had been in the mercantile trade for many years and at one time did a banking business as a private banker; made it a business of discounting notes and of loaning money on notes at times. One witness testifies that in 1885 he did not run his store, but looked after his farms and had an office at the store where he transacted all his business. Another witness testifies that Dusenbury formerly kept a store and about this time kept a banking house for about three years; “ was a moneyed man and often discounted notes, bought notes and loaned money, more particularly while in the banking business; after that he did not loan so much, but he did to some particular ones.”

It is to be observed that the entry offered does not show to whom the money was paid, nor is the time of the entry shown ex

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cept as it may appear from the entry itself. In another part of the evidence the book is called the discount journal of Dusenbury.

The book offered was not competent as an account book. The necessary preliminary facts were not shown, and besides the rule as to account books does not apply to a cash transaction such as was here offered. Smith v. Rentz, 131 N. Y, 169 ; 42 St. Rep., 879 . In the case cited the book offered by the plaintiff and held inadmissible was a ledger kept by plaintiff’s testator, a banker.

There is a rule by which entries of third persons in the usual course of business are, after the death of the persons making the entries, competent evidence. Arms v. Middleton, 23 Barb., 573 ; Fisher v. Mayor, 67 N. Y, 77 ; Burke v. Wolfe, 6 J. & S., 271; 1 Greenl. Ev., § 115. As said by Judge Story in Nicholls v. Webb, 8 Wheat., 337 , “ memoranda made by a person in the ordinary course of his business of acts or matters which his duty in such business requires him to do for others, are, in case of his death, admissible evidence of the acts and matters so done.” So, entries of deceased persons against their interest are admissible. See Wood’s Practice Ev., § 119 et seq. But these principles do not help the plaintiffs here, and we are referred to no case which holds that the entries made by the party himself in his books in his own favor are admissible in favor of his estate in a case like the present On the contrary, it has been substantially held in a number of cases that such entries are not admissible. Vaughn v. Strong, 4 N. Y. Supp., 686 ; S. C., 22 St. Rep., 369 ; Mason v. Wedderspoon, 43 Hun, 21 . See, also, Doolittle v. Stone, 8 N. Y. Supp., 605 ; 28 St. Rep., 319 ; Sheldon v. Sheldon, 11 N. Y. Supp., 477 ; 33 St. Rep., 754 , reversed upon other grounds in 133 N. Y., 1 ; 44 St. Rep., 260 ; Schwartz v. Allen, 24 St. Rep., 912 ; 11 Heisk. (Tenn.), 557, cited in Wood Pr. Ev., § 124. We think that the referee did not err in his ruling.

There are no other questions that call for special consideration. The question of delivery was at issue under the general denial. Sawyer v. Warner, 15 Barb., 282 . There was evidence from which the referee had a right to find that the note was never delivered by the defendant, and that being so, it was incumbent upon the plaintiffs in order to complete their title to show that their intestate purchased in good faith and for value. Hall v. Wilson, 16 Barb., 548 ; Curtis v. Crane, 6 St. Rep., 748 ; aff’d 121 N. Y., 650 ; 30 St. Rep., 1011 .

We find no sufficient ground for reversal.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.