Fleck v. Neerenberg , 85 N.Y.S. 379 ( 1903 )

BLANCHARD, J.

This is an appeal by defendant from a judgment of a Municipal Court of the city of New York. The action is brought to recover the sum of $ioo, alleged by the plaintiffs to be due from defendant as a balance of a bill for goods sold and delivered. The defendant pleads payment, and in support of this defense introduced in evidence a bill which had been made out by the plaintiffs, receipted by them, and then delivered to the defendant. This bill includes the amount of the balance claimed by plaintiffs. The plaintiffs thereupon introduced evidence to show that the receipting of this bill was the result of a mistake on the part of the plaintiffs’ bookkeeper. This bookkeeper testified, in substance, that on November 25, 1902, the defendant called at plaintiffs’ place of business to pay the bill; that for this purpose he handed over to the bookkeeper certain checks and cash, which the bookkeeper testified he then and there, in the presence of defendant, noted down and checked off on a memorandum: as follows: $14.28, $10.26, $7, $10, $153, $5.46. The bookkeeper further testified that he then added up these Items, and put down in the memorandum the erroneous total of $300, when in fact it should have been $200; that he then receipted the defendant’s bill' for $298.39, and handed it over, with $1.61 change, to defendant, who went away. This bookkeeper further testified that he counted the money and checks at the time, and that the defendant also counted the money and checks as he passed them over to him; that the error in the amount paid was not discovered by the bookkeeper until four hours after the defendant had left. The defendant testified that he paid the bookkeeper $300 in checks and cash; that he counted the items once, and that the bookkeeper counted them twice, and then stated that the amount was $300; that he did not see the bookkeeper make the memorandum of the items; that the payment was made after 11 o’clock a. m., and that he was first notified by plaintiff of the alleged shortage between 7 and 8 p. m. of the same day.

The question to be determined "by the trial court was whether the defendant paid $200 or $300. Upon this point the testimony of the plaintiffs’ bookkeeper and that of the defendant ,is diametrically opposed. Both are interested witnesses, but, aside from that fact, there is nothing tending to show but that each are equally credible. The defendants testimony that he gave the plaintiffs’ bookkeeper $300, partly in checks and partly in bills, and that among the latter were $1 and" $2 bills, and his failure to explain why he gave the bookkeeper $300, receiving from him $1.61 in change, when the sum of $299 would cover more than the amount of his indebtedness to the plaintiffs is a circumstance that tinges his version with some improbability. On the other hand, the defendant introduced in evidence a receipted bill for other goods purchased by him from the plaintiffs, dated November 28,1902, being one week later than the date of the receipted bill, which is in dispute in this action. The balance of $100 claimed by the plaintiffs to be unpaid on the bill of November 21, 1902, does not appear in this later bill of November 28th.

Another circumstance tending to sustain the defendant’s claim is this: The plaintiff testified that his bookkeeper called him up and said “he was short in his cash that day”; that “in looking over his accounts and adding up the different items he found a difference of $100.” He further testified that his daily cash transactions were very large, amounting sometimes to $2,000 or $3,000, and that on the day named they had received $1,200 in cash. The bookkeeper testified that he kept the sum paid him by the defendant separate from the other moneys paid in that day, and at first he said he “put all the other money separate also,” but subsequently admitted that the money paid him by the defendant was the only money paid in that day that was kept separate, and that this money he marked with defendant’s name. Why he kept the money paid by defendant in a separate package with his name marked thereon he does not explain, and it appears that the day’s receipts were all kept in one cash drawer. If this were true, that defendant’s payment was kept by itself, it would seem that the bookkeeper would have testified that he discovered his alleged shortage in that particular package, and it is reasonable to assume that upon the discovery thereof he would have taken the package to the defendant at the time he and the plaintiff went to defendant’s place of business, and would have then claimed that the money and checks were in the same condition as when they were received by him. At least he would have kept an accurate statement of the checks and cash received by him, so as to be able to say exactly as to the amounts of each item when called upon to do so. He says, however, that he is unable to say how much of the amount paid to him by "defendant was in checks and how much in cash.

Judging the testimony of the most interested witness by the probabilities, there is as much, if not more, to be urged in favor of the truthfulness of the defendant’s contention as in that of the bookkeeper, and it might well be said that the plaintiff had failed to sustain the burden of proof by showing that his receipt, which was presumptive evidence of payment, was given by mistake; and it will be seen that there is much that is susceptible of explanation which may throw light upon the main question. During the course of the trial much incompetent and improper testimony was introduced by the plaintiffs tending to show that the defendant had at other times and with other persons “been short” in the payment of his bills. Although this testimony was admitted without objection, we cannot say that it did not1 materially influence the trial judge to the prejudice of the defendant; and it is the duty of this court to examine the facts as well as the law, and we may reverse when, in our judgment, the interests of justice require it, without objection or exception being taken to offered testimony. The testimony in the case is closely balanced, and in such a case the province of the court below to determine where the truth' lies should not ordinarily be usurped, but a claim similar to the one sought to/be enforced herein is easily made, and with difficulty refuted, and, in view of the extreme uncertainty herein as to which party is in the right, we think a new trial should be ordered.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.

FREEDMAN, P. J., concurs.