
    (89 Hun, 67.)
    DONLON v. ENGLISH.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    1. Action for Goods Sold—Defense—Carrying on Business under Another’s Name.
    It is no defense to an action for goods sold that plaintiffs carried on business under the name of a firm having no interest therein, which, by Pen. Code, § 363, is made a penal offense, where defendant knew that plaintiffs were the sole owners of the business-
    2. Best and Secondary Evidence—Admission of List of Goods.
    Where, in an action for goods sold, plaintiff testified to the different sales, and that they were made either by himself or his brother, but that he was present at all the sales, and knew of them of his own knowledge, it was error to admit a bill containing a detailed list of the sales, which was made from plaintiff’s order book.
    Appeal from Westchester county court.
    Action by Thomas E. Donlon against Joseph English. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial; defendant appeals. Reversed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Henry Gr. K. Heath, for appellant.
    C. H. & J. A. Young, for respondent.
   BROWN, P. J.

This action was brought to recover a balance alleged to be due to the plaintiff for coal sold to defendant between June 1, 1892, and January 17, 1893. The plaintiff and his brother 'William during the period aforesaid carried on business under the firm name of F. J. Mulligan & Co. Mulligan was a brother-in-law of the plaintiff, but was not a member of the copartnership, and was not interested therein. At the close of the evidence the court denied a motion made by the defendant to dismiss the complaint, on the ground that the plaintiff was guilty of violating the law of the state which forbids persons transacting any business to use the name as a partner of one not interested with them as a partner. Pen. Code, § 363. There was testimony in the case that, at the time the coal was purchased, the defendant knew that Mulligan was not a member of the partnership, and that the plaintiff and his brother were the only persons interested therein, and we are of the opinion that the court properly denied the motion to dismiss the complaint on the ground stated. In Gay v. Seibold, 97 N. Y. 472, it was said that the purpose of the statute was to protect persons giving credit to the fictitious firm on the faith of the fictitious designation, and that it was not needed to protect those who obtained credit from such a firm,—that the stat ute was highly penal, and should be strictly construed. It wás accordingly there held that the transaction between the parties to that action was not within the statute, it appearing that all parties knew who the real partners were. Under the rule of the case cited, the question whether the defendant dealt with the firm in reliance on the apparent fact that Mulligan was a member thereof was properly submitted to the jury.

The plaintiff gave testimony tending to prove the sales of coal to the defendant during the period aforesaid. He testified that all the sales were made by himself or his brother, who at the time of the trial was dead, but that he was present at the sales made by his brother, and knew of them of his own knowledge. He was then shown a bill which contained in detail a list of the sales, and the amount of each, and enumerated 34 items thereon as the sales he had made. This bill was not an original memorandum, but was made up from the firm’s order book. The bill was then offered and received in evidence, against the defendant’s objection that it was incompetent and irrelevant. We think the court erred in the admission of this paper. The case, in respect to this ruling, cannot be distinguished in principle from Bank v. Madden, 114 N. Y. 280, 21 N. E. 408. That was an action against the defendant as indorser upon 18 checks. The defense was that the checks were altered, in respect to the time of payment, after they were indorsed, and the defendant was permitted to read to the jury a memorandum, which he testified he had made at the time of the indorsement, showing the dates, amounts, and time of payment of each check, respectively. This memorandum was held to have been improperly admitted, and a judgment in the defendant’s favor was reversed. The opinion cites many cases, and it was said that “the rule which renders such evidence admissible rests upon the principle of necessity for the reception of secondary evidence, and is not applicable when the witness has distinct recollection of the essential facts to which it relates.”

In the case before us the witness had a distinct recollection of all the sales contained in the bill. The plaintiff contends the evidence was admissible as a detailed statement of the items testified to by the witness. It does not appear to have been so restricted by the court, but was admitted without limitation, and would necessarily be regarded by the jury as corroborative of the witness’ testimony. In Howard v. McDonough, 77 N. Y. 592, cited by the plaintiff, the court appears to have held that a list of items to which a witness would testify of his own knowledge, but which were so numerous that he could not carry them or the respective values in his mind, might be put in evidence as a detailed statement of the witness’ testimony.

That case, however, has no application to the present controversy, and lays down no other or different rule than Bank v. Madden and the cases there cited.

"We are unable to say that" this paper may not have influenced the verdict of the jury, and the judgment must be reversed, and a new trial granted, with costs to abide the event. All concur.  