Jacobi v. Order of Germania — 56 N.Y. St. Rep. 142

Majority

p. 142

August Jacobi, Resp’t, v. The Order of Germania, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

1. Evidence—Docdmbntabt.

An examined copy of a church record, if in the nature of a public record, is admissible in evidence to establish the age of the insured, in an action on a policy or certificate.

2. Same.

The register of baptism does not prove when a child was born, only that he was born before the baptism.

3. Same.

Section 956 of the Code does not refer to church records.

Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.

Ayres & Walker, for app’t; Charles J. Patterson, for resp’t.

On the 25th of Movember, 1889, August Jacobi, Jr., a son of the plaintiff, applied to the defendant to become a member of the order with an intent to make a provision for his father in case of his, the son’s death. Mo one by the bylaws of the order could be admitted as such member who was, at the time of admission, over fifty years of age. The application stated his age to have been forty-seven on the 18th of February, 1889, and that he was born the 18th of February, 1842. He obtained therein a contract by which in consideration of certain payments yearly $1,000 would be paid by the defendant to the plaintiff in case of his, the appellant’s death. The defendant avers in its answer that the appellant was born on the 18th of February, 1835, and was consequently over fifty years of age at

p. 143

his admission as a member of the order and that in consequence of this misrepresentation the policy is void. The proof upon the trial was very conflicting. The father of the plaintiff testified that the deceased son was born in 1842. A brother and sister of the deceased testified to the same fact. The wife of deceased and her mother testified that he was born in 1838 and that he was married under that age. The defendant offered in evidence a certificate of the marriage of the plaintiff in 1885 and a certificate of the birth and baptism of the deceased on the 4th of March, 1838, and in this certificate he is stated to have been born on the 18th of February, 1839. These certificates were proven to have been written in the official records of the phurch books ot Katzhutte, principality of Schwaizburgh, Eudolphstadt.

This record is kept by direction of the supervision of schools and churches, and was kept by the pastor of the parish, and have been kept from time immemorial At the date of the records a Mr. Kuhne was pastor and the records are in his handwriting. The books were delivered by him to the successor as pastor of the parish, the Eev. M. Huke, who testifies to the truth of the record and to the copies^from it. The certificates of baptism of the children of the plaintiff, including the deceased son, were made by the pastors Ortloff and Toupell, and are without change or erasure, and are admitted to be true copies, and admissible if the original record be legal evidence. We think the certificates should have been received. If a record is of a public nature, such as this of a church, an examined copy of the entries relied on without production of the original, is admissible. Jackson v. King, 5 Cow., 237 ; Lewis v. Marshall, 5 Peters, 470.

The register proves the fact of marriage and the date as recorded. The register of baptism does not prove when the child was born, except that he was born before the baptism. Maxwell v. Chapman, 8 Barb., 579 ; Kennedy v. Doyle, 10 Allen, 181 ; Whittacher v. McLoughlin, 115 Mass., 167 .

Section .956 of the Code has no bearing upon the question. The section probably does not refer to church records, but section 962 Code preserves evidence admissible at common law. Such evidence was admissible at common law. 1 Greenleaf Ev., 484; Lynch v. Clark, 3 Salk, 54 ; Bradford v. Bradford, 51 N.Y., 670 , was decided upon a question of legitimacy. The registers certified too much.

Fisher v. The Mayor referred to the entry of a private person, and the question decided bears no analogy to a church record.

The judgment and order denying a new trial should be reversed and a new trial granted, costs to abide event