Bentley v. Falker ( 1898 )

Parker, P. J.:

Upon the trial of this action the defendant Falker offered to show by the books of one Lewiston Fairchild, a banker, in the village of Cazenovia, where the plaintiff and her son resided, that, on January 9, 1895, Eben Bentley deposited to his own credit in Fair-child’s bank the draft for $1,645, which the defendant gave to him for the b )nd and mortgage in question; that at the time he made such deposit e had only $93.94 to his credit; that immediately on that same d¡ lie drew upon said Fairchild his check for $602.25, payable to the order of L. M. Woodworth, and that it was subsequently paid by said banker and charged against Eben Bentley’s said account, composed of the $93.94 and the draft in question. Such books were excluded and the defendant duly excepted. It appears in the evidence that such check of $602.25, on the evening of the ninth of January, was received by Woodworth in payment of the note which the plaintiff had given for the unpaid balance of the purchase money she was owing him for the mortgage in question; and if the facts which the hoolis would have disclosed were also in evidence, it would appear that he was paid such debt from the money which Falker paid to Eben Bentley; that is, it would appear that the balance which the plaintiff owed Woodworth for the bond and mortgage in question had been paid with the defendant’s money. This wTas an important and material fact for defendant to prove, because if the assignment to him was a forgery, nevertheless, by the application of his money to the satisfaction of the amount still owing from plaintiff for the mortgage, he acquired an equity in the same, which she would be compelled to recognize and provide for in any judgment she might obtain in this action. Moreover, the application of such money to the payment of plaintiff’s debt, in connection with the further fact, which the defendant offered to prove, that it was done at the suggestion of the plaintiff’s husband, has a significant bearing upon the question whether the son was acting without her authority in transferring the mortgage.

The evidence offered was, therefore, material, and in my judgment it was also competent.

It was shown that the banker Fairchild was dead, and, therefore, the offer came within the rule which is quoted from Cowen & Hill’s Notes, and stated in Leland v. Cameron (31 N. Y. 121) to be as follows: “ That all entries or memoranda made (by deceased persons) in their course of business, or duty, by any one who would, at the time have been a competent witness of the fact which he registers, are competent.” There are a large number of cases illustrating this rule, many of which are cited in the following: Arms v. Middleton (23 Barb. 573); Fisher v. Mayor, etc. (67 N. Y. 73, 77); Nichols v. Goldsmith (7 Wend. 161, 162); Ocean, N. B. v. Carll (9 Hun, 239, 241). And the principle therein established is clearly broad enough to include the case before us. (See, also, 1 Greenl. Ev. § 115; Steph. Dig. art. 27.)

It was error, therefore, to exclude this evidence, and as such error was plainly prejudicial to the defendant, the judgment appealed from must be reversed.

All concurred.

Judgment reversed and a new trial granted, costs to abide the event.