Stuart v. Binsse — 20 N.Y. Super. Ct. 195

Majority

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James Stuart, Plaintiff and Respondent v. John Binsse, Executor, and Louisa La Farge, Executrix, &c., of John La Farge, deceased, Defendants and Appellants.

Headnote

1. In an action to recover for work done and materials furnished, under a special contract requiring the plaintiff to conform to plans and specifications forming part of the contract, a written statement made by a witness just before the trial, and years after the labor was performed and materials were furnished, and after the materials furnished had been consumed by fire, purporting to contain a specification of the nature, description, items, quality and quantity of the work done and materials furnished, is not competent as evidence, .notwithstanding he testifies that “it is made up both from his own knowledge of the work as it was actually done, and from the plans,” and that " it is correct.”

2. An ex parte parte written statement of facts (made by a witness), though in their nature they are competent when duly proved, cannot be admitted as evidence.

(Before Hopeman, Pierrepont and Bobertson, J. J.)

Heard June 5,

decided June 30, 1860.

Appeal, by the defendants, from a judgment entered on the report of Alvin C. Bradley, Esq., as referee, in favor of the plaintiff, for $18,701.32.

This action was brought to recover for plumbing work done by the plaintiff for John. La Farge (subsequently deceased), upon a very large hotel in the city of New York, in the course of its construction. The building was destroyed by fire just as it was completed. The issues in the case were tried before a referee. Upon such trial, nine plans of the different parts of the building were proved and admitted in evidence. A written statement, made by a witness recently before his examination, was produced, giving a detail of all the plumbing work done and materials furnished in each room and every part of the house, referring to such plans by their numbers, with great minuteness as to dimensions, weight, materials and apparatus—containing over 5,000 words, and occupying sixteen pages of the printed case. The plans themselves .had delineated upon them the lead tubes or pipes, and other

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fixtures. The witness testified, under an exception, that ho made up that statement by going through the plans and specifying “ the quantity, kind and description of the work- shown on each plan as done in the building;” and again, that, it was made up “both.from his own knowledge of the work “as it was actually done, and the plans,” and he had personal knowledge of all the work which appeared in such statement;” to which description of proof, the defendant's counsel objected. And on the question being put to the witness, viz : “ What do you say as to the correctness of the work, its quantity, weight, size, length and situation and location, as contained and described in your statement ?” The counsel for the defendant objected. The witness answered, “ I say it is correct.” The statement was then offered and received in evidence, against the objection and exception of the defendant’s counsel.

The estimate of the lead and solder furnished, as shown by this statement, made the lead amount to 113,089 pounds, and the solder to 14,039 pounds. The materials and labor, to recover compensation for which this action is brought, were furnished and performed between the 1st of June, 1852, and the 1st of December, 1853. The trial before the referee commenced on the 28th of September, 1857. The printed case contains 241 pages, but the foregoing statement sufficiently presents the only question considered by the court on the appeal. The referee reported in favor of the plaintiff, and from the judgment the defendants appealed to the general term.

John A. Bryan, for Appellants.

E. P. Cowles, for Respondent.

—I have been unable to find any principle on which to justify the admission of wholesale evidence, prepared out of court without the presence of th'e adverse party, which took place in this case. Plans, maps, drawings and models, are admissible as introductory to testi

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mony, and as conveying more rapidly and clearly than words, an idea of the subject matter to which the testimony* is to be applied ; but I do not understand that even they are admissible when they undertake to describe the very matter in dispute. If the location of a house or building was in issue, I apprehend a witness could not be allowed to have a map, showing such location, put in his hand, and be asked if that was correct. But, in this case, the witness had drawn up the whole of his evidence out of court, in the form of a long minute statement, and which he was permitted to bring into court, and then testify to its correctness. It is possible, if the building and work remained, a witness might have been allowed to go round and minute down from personal examination the plumbing work in the building, and testify to _ the correctness of the inventory, because that would tend to prove merely the present existence of the work, and it would be a memorandum to supply the defect o'f memory, in case he could not remember; but the statement offered was merely a record of the condition of the memory of the witness of events occurring long previously, aided by the suggestions of the plans, as he acknowledged himself. The state of his memory as to the same facts, on the trial, was not tested, and the memorandum offered was not made at the time of the occurrence of the events, and there was no proof of defect of memory in regard to them; thus coming- directly within the cases of Russell v. The Hudson River Railroad Company, (17 N. Y. R. 134) and Halsey v. Sinsebaugh, (15 N. Y. R. 487, 488.) It is also subject to the same.evils as are so well described in the case of Young v. Catlett, ( 6 Duer. 442 .) There is nothing in the considerations urged as to the multiplicity " of the details, or the length of time to be consumed, and the like, which can take this case out of the ordinary rules of evidence ; indeed, it would be impossible to lay down, any rule for such an exception. The very object of a reference is to hear cases requiring details. If they could be tried in so summary a "manner, they might easily be disposed of before a jury. The attempt to shorten the time

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has actually increased it, as the case must be referred • back.

The judgment must therefore be reversed, and a new trial ordered, with costs to abide the event.

—Drawings, diagrams, plans, models and the like, may be made out of court, and yet be used as evidence oh the trial; but a written statement, made up of words, cannot be made out of court and admitted as the evidence of the witness who is on the stand, if objected to by the adverse party. The reason is obvious. Every one of much experience knows that when statements thus prepared are rejected, and the witness is compelled to testify, his testimony often differs widely from the prepared statement; and that it not unfrequently appears in such cases that the written statement has been shaped by quite another mind, and quite other recollections, than those of the witness who offers it. The adverse party has the right to hear the witness, to observe his manner, and to see, and.to have the jury see, how he appears when giving his testimony. In the case before us, more than sixty folios in consecutive order, written down out of court, are admitted in evidence against the objections of' the adverse party. We think this clearly an error. (Russell v. The Hudson R. R. 17, N. Y. 134; Young v. Catlett, 6 Duer, 442 .)

Hoffman, J.—Concurred in granting a new trial.

Ordered accordingly: -