Powell v. Conover — 56 N.Y. St. Rep. 879

Majority

p. 879

Robert S. Powell et al., Resp’ts, v. Daniel D. Conover, App’lt.

(Supreme Court, General Term, First Department,

Filed January, 12, 1894.)

Headnote

Evidence—Corporate books.

The hooks of a corporation are not admissible in evidence against its trustee, without proof that he has either actual or constructive knowledge of their contents.

Appeal from a judgment entered upon a verdict in favor of plaintiffs.

Thos. K Stewart (K H. Benn, of counsel), for app’lt; Wilcox, Adams & Green (George B. Adams, of counsel), for resp’ts.

The judgment awards to the plaintiffs $954.05, which was necessarily founded upon a determination by the jury that plaintiffs had loaned to the defendant the principal of said sum It was defendant’s contention on the trial that, while he received the money from the plaintiffs, it was received by him as an officer of a corporation, and that it was understood and intended by plaintiffs, and defendant as well, that the loan was made to the corporation, and not to the defendant. Upon the trial, one of

p. 880

the plaintiffs, who represented his firm in making a loan, and the defendant, testified, each sharply contradicting the other. At the close of the testimony no motion to dismiss, or for the direction of a verdict, was made by either side, both the parties assuming that the testimony presented a question for the jury. The case was submitted in a charge by the court, to which no exception was taken; and, the jury having rendered a verdict in favor of the plaintiffs, it follows that the judgment must stand, unless errors were committed during the trial which call for a reversal.

The only exception to which our attention is called by the appellant was taken to the refusal of the court to admit in evidence the books of the corporation, to which the defendant claims the loan was made. Defendant, before offering the books in evidence, did not show by whom they were kept, furnished no proof that the •entries were made at the time of the transactions, nor by whose direction they were made. Indeed, there was an entire absence of proof tending to authenticate the books, or to warrant the inference that plaintiffs had actual, or was chargeable with constructive, knowledge of their contents; while, on the other hand, it had already been made to appear by the plaintiff’s testimony that he never saw or knew of the entries, had never examined the books, and that they were never shown to him. How it was that defendant’s counsel was induced to be content with a simple offer of the books in evidence is apparent when we read from the record what he said to the court at the time of offering them in evidence. He said:

“ The books are offered for the purpose of showing that the transaction was a company transaction, and the witness, being a trustee of the company, must have been familiar with the entries in the books of the company.”

It seems to be clear, therefore, that it was his view that the mere fact that one of the plaintiffs was a trustee of the corporation made him chargeable with actual knowledge of its business transactions, and of the entries made on its books. But this is not the rule, and has not been, at least since Rudd v. Robinson, 126 N. Y., 113 ; 36 St. Rep., 500 . The refusal to admit them, therefore, was not, in view of the evidence previously adduced, error.

The judgment should be affirmed, with costs.

All concur.