
    George Van Name, as Administrator of Joseph H. Van Name, Deceased, Respondent, v. Frederick T. Barber, Appellant.
    Second Department,
    November 16, 1906.
    Sale — evidence — when books of account admissible to show debits and credits — Statute of Limitations — part payment on running account.
    A defendant sued for value of groceries ordered from and delivered at his residence is presumed to have known of the orders and delivery.
    When it is shown that the plaintiff’s intestate, who sold the groceries, employed no bookkeeper, hut kept the books of account himself, such hooks, when proved to be accurate by persóns who have settléd their accounts thereby, are admissible in evidence. A clerk employed by the intestate to take orders on passbooks and deliver groceries, but who had no knowledge of the hooks of account, is not such a clerk as to render the books of account inadmissible in evidence.
    Such' books are admissible to show the credits as well as debits, for a credit entry made when its operation was against the interest of the party making it, and at a time when he had no motive to give false credits, is admissible in his favor, and is prima facie evidence of payment by the debtor, so as to take the account out of the Statute of Limitations.
    A payment made upon a running account within six years of action thereon is presumed to have been made upon the balance unpaid, and is sufficient to save the balance from the Statute of Limitations.
    Appeal by the defendant, Frederick T. Barber, from a judgment of the Municipal Court of the city of New York, borough of Richmond, rendered on the 31st day of July, 1905.
    
      William T. Croak, for the appellant.
    
      Frank H. Innes, for the respondent.
   Rich, J.;

Action was brought to recover an unpaid balance of the purchase price for groceries and provisions alleged to have been sold and delivered by plaintiff’s intestate to defendant between the 19th day o.f October, 1896, and August 27, 1898. All of the items charged in the account accrued prior to August 28, 1898, and each of such charges was outlawed upon its face but for the fact that a cash payment of- ten dollars ■ was entered upon the Credit side of . such account under date of June 26,. 1899.

Upon the trial the plaintiff proved that one Coates, in the employ of his intestate during the years 1896, 1897 and 1898, went to the defendant’s residence on different occasions during those years, and there received orders fdr groceries and provisions, which he entered in an order book carried for that purpose. The orders so received by him he put up from the entries in the book, and delivered to the 'defendant, at- his residence, on the days following the days on which each order was given. The duties of Coates were to get orders and deliver them. He is not shown to have had any, other duties connected with the business.-. He testified that he was decedent’s clerk, and “had a sort of general knowledge of -wliat was going on in the business.” The plaintiff’s intestate had no bookkeeper, but kept regular books of account in which he1 entered all orders taken by Coates, copying the same from the order book used by the latter. It was proven by one Wright that he had dealt with the decedent on credit for many years, and from time to time had settled "and paid" his account; that the" decedent kept such account, in his store books, and ’ furnished the witness with a passbook, in which all articles prdered and delivered Were entered at the time of their purchase. The decedent rendered bills from time to time, the items of which the witness compared with the items in the passbook and ■ found themcorrect. Payments were entered in this passbook, when made, 'in red ink, by the decedent, and were fotind by the- witness; to be correct. The witness never saw the decedent’s store books or; his accounts as therein entered. The passbook and so much of the decedent’s store book of accounts as contained the account of the witness during the time covered by the entries in. the passbook were received in evidence over the defendant’s objection.

The plaintiff testified that there came into his possession, as. administrator, the regular books of account kept -by liis father in his business, on which -there appeared an account against the defendant contracted during the. three years testified to by the witness -Coates1; that the entries composing such account were all in the handwriting of his father, the charges being entered in black ink, and the credits in red ink; that he had dealt with his father in his lifetime, pm> chasing goods on credit and running an account on which at different times he had made payments; that on different occasions while such account was running he examined his father’s books and found that his account as entered therein was correct. The book containing the account against the defendant was then received in evidence, to which an exception was taken, and this raises the • only serious question we are called upon to consider.

While it does not clearly appear that the defendant gave the orders personally to Coates, it is .shown that his office was at his residence where the orders were given and groceries and provision's delivered; the account is for necessaries- which it was his legal duty to provide for his family, and he must be presumed to have known, at least, of the giving of the orders and of. their delivery. The book account consisted of several pages of charges, commencing on October 19, . 1896,. and ending on August 27, 1898; between these dates three credit entries of cash paid, amounting to $305, each credit being deducted from the amount then unpaid and carried forward. At the time of the last- payment the debit balance was $283. Three credit entries were thereafter made as follows: “11/15/98. By Cash 10.” “ 1/20/99, By Cash 10.” “ 6/26/99, By Cash 10.’^ Each credit was de'dneted and the balance carried out. The plaintiff’s intestate died February 18, 1900, and this action was commenced by the personal service of- the summons and complaint on June 20, 1905.

Coates was not such a clerk as to render the- book inadmissible in evidence. ■ To have had this result, he must have had such knowledge as would enable him to testify upon the subject, of the goods sold. (Matter of McGoldrick v. Traphagen, 88 N. Y. 334; Smith v. Smith, 163 id. 168.) While he had knowledge of the order's given by defendant for goods, and that they were delivered, in a general way, he could not testify as to the different items purchased and delivered, their amount or the condition of defendant’s account. These facts were presumably known only by the decedent, he had no bookkeeper, and all the formalities having been established, the book was properly received in evidence, and although not conclusive as to its contents, was entitled to consideration in connection with the other evidence.. Any other"*interpretation of the rule, in cases„where the party is dead, and kept no clerk able to testify to the truth of the entries in his books, would result-'not only in great inconvenience but in a denial of justice. 1

The appellant argues that the rule does not extend to credit entries, and that such entries have no force or effect unless accompanied by proof that the payments were; in fact made, and called our attention to Matter of Gladke (45 App. Div. 625),' as an authority sustaining his contention. We do not think that case „ states the rule applicable to this action. If it was intended to declare the proposition therein stated as a general rule applicable, to all cases in which credits' appear in a running account or indorsements are made upon written securities, the court in making that decision evidently overlooked the well-settled law of this State that. a credit entry or indorsement of payment, made at a time when its operation is against the interest of the party making it, and when ■ he had no motive to give a false credit, is admissible as evidence in favor of the party making it, and prima facie establishes such payment. . (Matter of Kellogg, 104 N. Y. 648; Mills v. Davis, 113 id. 243, in which many of the earlier authorities are cited.) In the case under consideration the Statute of Limitations would not have barred the cause'of action, had no payments been made until August 2Y, 1904, four years and six months after the death of plaintiff’s intestate. The last credit entry was-made on June 26, 1899, more than five years before the.aid of the statute could have been invoked to bar the claim. The entry is in the handwriting of the plaintiff’s intestate, who died four years and six months before the bar of' the statute could have been asserted,, which establishes that' the'entry was made, at a time when no motive for a false credit could have existed, and that it was against the interest of the creditor' making . it, which brings the case Within the rule established by the authorities cited; and the entry was admissible against, the defendant with- - out proof of its actual payment. (Matter of Kellogg, supra ; Risley v. Wightman, 13 Hun, 163; Sherman v. Matthieu, 106 App. Div. 368.)

A payment having been made upon this running account within six years prior, to the commencement of this - action, the presumption follows, in the absence of evidence do the contrary, that it was made to apply upon the balance Unpaid. (Smith v. Velie, 60 N. Y. 106), which was a sufficient recognition of the validity and existence of the debt, and a promise to pay the remainder is inferable and 'justified by the evidence.

The judgment must be affirmed, with costs.

Hirschberg, P. J., Woodward, Hooker and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  