
    James J. Dooley, App’lt, v. Arthur Moan, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 25, 1890.)
    
    1. Evidence—Books oe account.
    The old rule as to the requisites to make a party’s books evidence in his favor has not been relaxed. He must show that he keeps no clerk; that some of the articles charged in the account have been delivered; that the books produced are his account books, and by some witness who has dealt with him and settled with him from such books that the party kept fair and honest accounts.
    2. Same—Memoranda.
    But books and their entries may be used as memoranda to refresh the recollection of witnesses who made or were cognizant of the entries at the time they were made and could swear that they knew them to be correct when made.
    Appeal by plaintiff from a judgment of the Albany county-court, affirming a judgment of a justice of the peace.
    
      Doyle & Fitts, for app’lt; P. D. Niver, for resp’t.
   Mayham, J.

This is an appeal from the judgment of the county court of Albany county, affirming a judgment of a justice of the peace.

The action was for work and labor.

The answer admitted the plaintiff’s claim, and set up by way of set-off, or counterclaim, an account'for goods, wares and merchandise, sold and delivered by defendant to plaintiff.

On the trial before the justice the defendant claimed and was awarded the affirmative of the issue, and to establish his counterclaim proved that he was a merchant, and as such sold and delivered goods to the plaintiff, some of which were delivered to plaintiff’s wife and children.

The plaintiff’s claim as alleged and proved amounted to $96.39, which was not controverted by the defendant.

The defendant’s account as claimed amounted to $88.68, some of which was for intoxicating liquors.

It seems substantially conceded by the learned counsel on either side that five dollars was deducted by the justice for liquors embraced in the account, and the balance of $83.68 allowed and deducted from the plaintiff’s claim of $96.39, leaving a balance of $12.71 in favor of the plaintiff, for which the justice rendered judgment, with costs.

The evidence shows that the defendant, his niece, Annie Moan, and her sister, Catherine Moan, delivered goods to the plaintiff and his family. Annie was his book-keeper and made all of the entries in the book of account put in evidence.

Hone of these persons (who were all sworn as witnesses) could state the specific articles delivered by them.

When items were delivered by the book-keeper she made the entries upon the book direct, and when delivered by the others the practice was to enter them on slips of paper and place them on the desk and the book-keeper would enter them on the book.

The defendant proved by one witness that he had dealt with defendant and settled from his book, and he kept honest accounts.

The only evidence of the items and amount of the defendant’s account was from the book kept in the manner above indicated.

There was but one book on which the entries were made, which, on the trial, was called the ledger.

This book was offered and received in evidence on the trial under the plaintiff’s objection.

We think its receipt was error, for which the judgment should be reversed.

It is true that the objection was not specifically taken that the proper foundation had not been laid for its introduction, but it was objected to as incompetent, illegal and improper, and it is quite apparent that no form of objection could have enabled the defendant to have supplied the proof necessary to make this book competent evidence within the established rules of law allowing books of accounts as evidence.

Before parties were permitted to be witnesses in their own behalf, books of account of a party who kept no clerk were admitted from necessity where they were verified and authenticated in a given way, and the method of authentication was definitely stated, in Vosburgh v. Thayer, 12 Johns., 462, and that rule has been rigidly adhered to where books of account have been offered as evidence of the transaction of parties, as distinguished from memorandum to refresh the recollection of witnesses.

To make books competent evidence under that rule the party seeking to use them must prove:

First. That the party keeps no clerk.

Second. That some of the articles charged in the account have been delivered.

Third. That the books produced are the account books of the party.

Fourth. He must prove by some witness who has dealt with him and settled with him from such books, that he kept fair and honest accounts; upon such proof the book became competent evidence for the consideration of the court, or jury.

This rule has not been changed or relaxed by any of the legislation making parties competent witnesses in their own behalf, or by any judicial determination to which our attention has been directed.

In Knight v. Cunnington, 6 Hun, 100, it was held that the books of a physician were not competent evidence for him unless he first prove the entries were made by him, that he kept correct-books, and that others have dealt and settled with him from these books. In Gould v. Conway, 59 Barb., 355, it was held that where entries were reported by a salesman and entered by a bookkeeper on the book, the book did not prove the entries unless verified by the evidence of the salesman in connection wth the book.

In Ives v. Waters, 30 Hun, 298, the rule laid down in Yosburgh v. Thayer, supra, was reaffirmed, and it was held that books of account were not competent evidence when one-fourth of the entries were in the plaintiff’s handwriting, and three-fourths in that of a clerk.

In Beatty v. Clark, 44 Hun, 126; 8 N. Y. State Rep., 423, the court says: “To enable a party’s own book of accounts to be put in evidence in his favor, the rule as stated in Vosburgh v. Thayer, 12 Johns., 462, and as it still exists, is that a foundation must be laid for their admission by proving that he had no clerk; that some of the articles charged had been delivered; that the books produced are the account books of the party and that he keeps fair and honest accounts, and this must be done by those who have dealt and settled with him.”

Many of these conditions have not been, and could not be complied with in this case, as the defendant kept a clerk, and the books were not in his handwriting, nor was any portion of the same.

But it is urged by the learned counsel for the respondent that the books in this casé were competent evidence under the decisions in Krom v. Levy, 1 Hun, 171; The Mayor v. Second Avenue R. R. Co, 102 N. Y., 592; 2 N. Y. State Rep., 526; Halsey v. Sinsebaugh, 15 N. Y., 488 ; Russell v. H. R. R., 17 N. Y., 140; Philbin v. Patrick, 6 Abb. N. S., 287, and Marcly v. Shults, 29 N. Y., 346.

But in these cases the books and the entries were used as memoranda to refresh the recollection of witnesses, who made, or were cognizant of the entries at the time they were made, and could swear that they knew them to be correct when made.

In such case it is the refreshed recollection of the witness and not the abstract evidence of the books of account that constitutes the proof.

In Krom v. Levy, supra, the witness made the entries and knew them correct at the time, both as to fact and price charged, but could not state them on trial without reference to the book; held competent for him to read from the book.

In Mayor v. Second Ave. R. R. Co., supra, where the time keeper delivered statements of time daily to the book-keeper who entered the time as reported, both swearing to the accuracy of the part performed by them respectively, but neither having knowledge of the accuracy of the facts stated by, or acts done by the other, the book was received and read in evidence and it was held no error.

But this was but the verification of a memoranda which could not err unless one or the other of the witnesses swore falsely.

It falls far short of sustaining the admissibility of the book put in evidence in the case at bar.

In Halsey v. Sinsebaugh, 15 N. Y., supra, it is held “ that an original memorandum made by a witness presently after the fact noted in it transpired, and proved by the same witness at the trial, may be read by him as evidence to the jury of the fact contained in the memorandum, although the witness may have totally forgotten such fact at the time of the trial.”

This is a familiar doctrine, but it is no authority for the introduction of the defendant’s books of account in the case at bar.

In Russell v. H. R. R. Co., it was held competent for a witness who made a correct memorandum of an event at the time of the occurrence which he knew at the time to be correct, but which he could not then recollect, after reading the memorandum was permitted to read it in evidence, but it will be observed that the memorandum was of an act or event known to the witness at the time it occurred, and not communicated by another.

In Philburn v. Patrick, supra, the witness testified that the entries were made when the articles were delivered in the course of his business, as the book-keeper of the plaintiff.

He did not recollect the delivering of the articles but was only able to state what articles were actually delivered, from having made charges in the scrap-book.

They were made about the time of the delivery, and his evidence was properly received within the authorities above referred to.

In all these cases it will be observed that the book was only received to refresh or verify the recollection of the clerk or bookkeeper, and they do not come within the principle under which books of accounts are made competent evidence for a party in his own favor.

Hor do we see that they in any way disturb or trench upon the well settled rules so long established for the admission of books of accounts as evidence.

We think their admission was error for which the judgment of • the county court and that of the justice should be reversed.

Judgment reversed, with costs.

Learned, P. J., and Landon, J., concur.  