Skipworth v. Deyell — 64 N.Y. St. Rep. 725

Majority

p. 725

William Skipworth et al., Resp’ts, v. John Deyell, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed December 27, 1894.)

Headnote

Evidence—Documentary—Books of account.

A book, not of original entries, but a copy of a prior copy, not made wholly by the witness but partly by another person, of which the original entries were not shown to have been made in the ordinary course of business, nor in accordance with the duty of the persons making them, nor that they were made contemporaneously with the transactions to which they relate, is not admissible in evidence, either as a book of accounts or as memoranda.

Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial on the minutes of the court.

J. F Kinney, for app’lt; P. Chamberlain, Jr., for resp’ts.

There was an error in the admission of evidence in this case which must be fatal to the judgment. The action was on an alleged oral agreement of the defendant to pay the plaintiffs, for their saloon, fixtures, and stock in trade, all that such saloon, etc., had cost them. The conflict of evidence on the several q uestions whether any such agreement was ever made, whether the defendant took title to the property from the plaintiffs, and whether the plaintiffs liad any title in the property to transfer, was very sharp, and left those questions very much in doubt. But, when it came to the question of what the property had cost the plaintiffs, they relied upon what was called “ A Book of Account Kept by Thomas

p. 726

Skipworth of Expenditures in the Place No. 174 State St.” This book seems to have contained 8 or 10 pages of items, footing up something more than $1,200. It was presented for identification to the plaintiff Thomas Skipworth when on the witness stand, and after he had undertaken to give the items of the expenses in question from recollection. He testified about the book as follows: “ That book contains a statement of everything we put into the place, except the last rents paid Mr. Deyell, of $25." The book was then offered in evidence. Counsel for the defendant •objected to it as incompetent. The witness testified further; “I kept the book. Some of it is in my handwriting, and some' in my bartender’s. Half of it is my bartender’s handwriting. I was there at the time. It was copied onto another book first, and copied from the other book onto this." The witness was then asked by the court, “Are the items correct, of your own personal knowledge?” to which he answered, “ Yes, sir; everything on the book.” The book was thereupon received in evidence, and counsel for the defendant duly excepted to the ruling.

The ruling was clearly erroneous. The book was shown not to have been a book of original entries. It was, at least, the copy of a copy. The copy was not even made by the witness, but half of it by another person, who was not called to verify it. But, what was worse still, the original entries were not shown to have been made in the ordinary course of business, nor in accordance with the duty of the persons making them, nor that they were made contemporaneously with the transactions to which they related. All these elements were essential to the admissibility of the book, even if it had been shown to be a correct transcript of the original entries so made. Mayor, etc., v. Second Ave. R. Co., 102 N. Y. 572 ; 2 St. Rep. 526 ; West V. Van Tuyl, 17 St. Rep. 273 . In both these cases, as in that of Manheimer v. Stern, 45 St. Rep. 64 $, also cited by counsel for the respondents, the book was received as original memoranda, and not as a book of accounts. None of the preliminary evidence necessary to entitle the book in this case to admission as a book of accounts was given, and, as we have seen, it was equally without evidence to sustain it as original memoranda. The statement of the plaintiff that he knew the book to be correct, of his personal knowledge, did not make it admissible as evidence. The witness might, perhaps, have made a case in which he would be entitled to refer to the list of items as a memorandum, and testify seriatim, from his own knowledge, to the correctness of each item ; but by no possible means could the book have been made evidence, of itself, of the items and amount of the plaintiffs’ claim. The judgment and order appealed from must be reversed, and a new trial granted, with costs to abide the event

All concur.

So ordered.

Cases cited

Mayor v. Second Avenue Railroad 102 N. Y. 572 N.Y. 1886-06-22 p. 726