Irish v. Horn , 84 Hun 321 ( 1895 )

PUTNAM, J.

Plaintiff, on the trial before the justice to prove the set out his complaint, read in evidence pages 83 and 84 of his book of account. It is urged by appellant that, although defendant’s objections to such book of account were overruled, plaintiff neglected to actually read said pages 83 and 84, and hence there was no evidence whatever before the justice to establish plaintiff’s cause of action. The learned county judge, however, reached the conclusion that plaintiff’s book was on the trial treated and regarded as in evidence, and hence on the appeal it should be deemed that pages 83 and 84 of the book were read. We will assume that the conclusion reached by the court below in that regard was correct.

We think, however, that the justice erred in overruling the objections of defendant to the reception of the book in evidence. It was not properly admitted as a book of account. The necessary and preliminary proof required to make it competent evidence as such was not given. It was not shown that plaintiff had no clerk; that he kept fair and honest books of account, etc. See Dooley v. Moan (Sup.) 11 N. Y. Supp. 239. Nor was it properly received as a memorandum, for the same reason. To render a memorandum competent, in connection with the testimony of a witness, such witness must testify that the memorandum was correctly made, and that he is unable to recollect the facts independently of the entries therein. Bank v. Madden, 114 N. Y. 280-284, 21 N. E. 408.

Judge Selden, in Russell v. Railroad Co., 17 N. Y. 134-140, says:

“It is, however, an indisp'ensable preliminary to the introduction of such a memorandum in evidence that it should appear * * * that the witness is unable, with the aid of the memorandum, to speak from memory as to the facts. It is as an auxiliary to, and not as a substitute for, the oral testimony of the witness, that the writing is admissible. It is the duty of the court, in all such cases to see, before receiving the memorandum in evidence, that it was made at or about the time of the transaction to which it relates; that its accuracy is duly certified by the oath of the witness; and that there is a necessity for its introduction, on account of the inability of the witness to recollect the facts.”

Plaintiff neglected to testify that the account on pages 83 and 84 of his book contained a true and correct statement of materials and labor furnished defendant, entered on said book at or about the time of said transaction, and that he was unable to remember the items independently of the entries in the book. On the contrary, plaintiff testified that he had other means than the items set forth in the book of showing what goods were sold and labor performed for defendant, except what Mr. Black got. To render pages 83 and 84 of plaintiff’s book competent as a memorandum, plaintiff should have sworn, in substance, that he ma.de the charges therein of materials sold to and labor performed for defendant at the time the several items were furnished; that the account was correctly kept; and that he was unable to remember such items independently of the memorandum. In the absence of such testimony, we think the justice erred in overruling the objections of defendant to the book of account, and also that such book read in evidence failed to establish plaintiff’s cause of action.

We think the justice also erred in excluding evidence offered by the defendant of conversations between plaintiff and Black as to clapboards, in overruling defendant’s objections to testimony offered by plaintiff as to conversations and transactions between him and Black, and fell into other errors which we deem unnecessary to discuss, as, for the reason above stated, the judgment must be reversed. Judgment reversed, with costs in this court and the court below. All concur.