Silverman v. Simons , 35 N.Y.S. 668 ( 1895 )

Osborne, J..

This .action was brought against the late sheriff of Kings county to recover damages for the ■ alleged •cotíversion of certain personal property of which the plaintiff -claimed to- be the owner, and .the present • -defendants, as indemnitors of. the' sheriff,^ were substituted in his-.stead. Plaintiff obtained a verdict, and from the judgment entered thereon, and the order denying a motion for a new trial this-, app.eal is taken. ■...'• '

It appears, from the evidence that plaintiff claimed that the personal property in question had been transferred to him by the insolvent firm of B. Sturman & Son in payment of an alleged balance of indebtedness for moneys loaned at various times by the plaintiff to said firm. Defendants- sought to show that the alleged loans were fictitious, and that the transfer of said property to plaintiff was in fraud of the creditors of B. Sturman & Son.

Plaintiff testified that the first loan to Sturman & Son was" made by him early in October,. 1892; that it consisted of a check for $500 drawn by him on the East Side Bank, and, also, of the sum of'$500 in bills likewise drawn from the same bank, and that this sum of $1,000 was a. wedding present from his wife’s uncle on the occasion of his marriage in September, 1892, and which he had deposited in said bank.

With a view of corroborating plaintiff’s evidence in this regard, the learned counsel for the plaintiff offered in evidence the “bank book of the East Side Bank, showing the deposit of the $1,000 and the draft of this $500 check.” Plaintiff testified, with reference to the book, as follows: “ Examined by Mr. Patterson.— Q. Did you have' an account with the East Side Bank? A. Yes, sir. Q. Did you have a pass book in which the bank entered the deposits as you made them? A. Yes, sir. Q. Is this the pass book? ' A. That is the book. Q. Did you receive from the bank checks back ? A. Yes, sir. Q. Are they entered .on the other side? A. Yes: Q. That was the original book of account between you and the bank? A. Yes, sir. Mr. Patterson.— I offer it in evidence. By Mr. Hirsch.— Q. Do you know in whose handwriting these entries are ? A. No, sir; I don’t know. Q. Did you ever see anybody write in this book ? A. No, sir; that is, on the other side, because I didn’t use it no more. Q. There are entries in the book on the other side? A. No, sir; that is the end of it. Q,. The first four or five pages, do you know whose handwriting they are? A. No, sir. Q. Did you ever see any entry made in that book? A. No, sir; nobody made it except the — Q. By Mr. Patterson.— Except what ? A. Except the one in the bank. Q. But you did not see it made ? A. I gave that to them to correct the book. Q. By the Court.— And they handed it back to you ? A. They handed it back to me. Q. With the entry in it? A. The same book —the bookkeeper. By Mr. Patterson.— You handed this in with your money ? A. Yes. Q. And they handed back the book to you with your money entered in? A. Yes. Mr. Patterson.— I will offer the first five pages. [Objected to as incompetent and not the best evidence. Objection overruled. Defendants except.] ”

These five pages of the bank book admitted in evidence consisted of entries of various sums at various dates, purporting to be deposits commencing September 27, 1892, with the sum of $l,019.46j and having an initial opposite each sum (presumably of the receiving teller), while alongside of these' entries, and on the same pages, was a list of various amounts placed under each other after the usual manner of balancing a bank book (including two. items of $500 e,ach), and, which amounts are supposed to represent the various checks drawn by the depositor.

We are ,of opinion that this bank book was erroneously admitted m evidence, and that the exception to its admission was well taken.

We are at" a loss to see how the bank book was admissible as constituting evidence of the facts sought to be proven. The fact that the bank book indicated that, on September 27, 1892, plaintiff made a deposit of $1,019.46, does not prove that plaintiff acquired possession of $1,000 as a wedding. gift, and that he deposited that particular amount in the East Side Bank; neither do the two sums of $500, set down in a long .column of figures, show that plaintiff drew a check for $500 and loaned it to Sturman & Son, as he testified. The bank book was offered and received with a view of corroborating plaintiff’s evidence on these particular points, and yet, for aught that appears to the contrary, plaintiff might have received this- sum of $1,019.46 . from "some other source, and used the check for $500 for some purpose entirely foreign to that which lie testified to.

When the book was offered and plaintiff was examined with reference to it, no attempt was made to show by his evidence, that the item of the deposit of $1,019.46 and the item of the= $500 check were the, same items to which he had previously testified; the book having been admitted in evidence, the; jury was left to assume or infer that the items in question corroborated plaintiff’s evidence with reference to those transactions, and that the bank hook was not without influence on the jury is shown by the fact, as appears .from the appeal book, that it was sent to the jury room at the request of the jury- ■ ' .

Entertaining these views, we have not considered it necessary to pass upon the point raised by the learned counsel for the appellant, that the entries in the book were not verified by some clerk or official of the hank.

We are of opinion that, by reason of the error in admitting the pass book in evidence, the judgment and order denying motion for new trial -should be reversed, with costs to abide the event.

Clement, Ch. J., concurs.

Judgment and order reversed, with costs to abide event.