
    Frederick Haffner, Appellant, v. Katharina Schmuck, Respondent.
    
      Evidence — effect of admitting and aftet'wards striking out a book of account kept partly in the English and pa/rtl/y in the German language—allowing a witness to refresh her memory by reference to it.
    
    Assuming, without deciding, that it is error, in au action to recover, among other things, for money loaned, to admit in evidence a book of account, purporting to show the accounts between the parties, kept by the defendant, written partly in English and partly in German, the error is cured where the court subsequently strikes out the hook from the evidence and carefully instructs the jury that it is no longer in the case for any purpose, and the plaintiff acquiesces in such ruling.
    The defendant may, after the book has been excluded, properly he permitted to refresh her memory by reference to it.
    Van Brunt, P. J., dissented from the conclusion reached by the majority, on the ground that it was error to permit the defendant to read the book to the jury without having laid a foundation for its introduction in evidence.
    Appeal by the plaintiff, Frederick Haffner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of March, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Louis Lowenstein, for the appellant.
    
      John Hardy, for the respondent.
   O’Brien, J. :

The complaint stated three causes of action: Fi/rst. That the plaintiff rendered services to the defendant as collector of rents from July 1, 1885, to August 15, 1894, for which he was promised $60 per month and the use of certain apartments, and that there is due as his salary a balance of $4.290, on which amount the defendant is entitled to a credit of $560 for money loaned, leaving an indebtedness to the plaintiff of $3,730. Second. That the defendant is further indebted for services rendered by the plaintiff for keeping certain buildings repaired in the reasonable sum of $6,975. Third. That the plaintiff is entitled to payment by the defendant of $192.56 for money expended in her behalf and at her request.

The answer denied the second and third causes of action, and though admitting the contract referred to in the first, and the services rendered, set up a counterclaim for $5,078, for money loaned to the jdaintiff which is still unpaid. By way of further defense to the second and third causes of action, the Statute of Limitations is interposed. The plaintiff’s reply admits that some loans were made, but denies that they amounted to the sum stated by the defendant, and pleads as to such loans the Statute of Limitations. A bill of particulars was called for and produced, and the defendant’s books -were admitted in evidence, though these latter were afterwards excluded, as they appeared to be partly written in the German language.

Upon the trial there was, as to the numerous items involved in the issues presented, a clear conflict of evidence as to the circumstances concerning the services rendered by the plaintiff, and the loans of the defendant to him — particularly with regard to a certain $3,000 loan -made on September 12, 1889, the plaintiff contending that the money referred to was really a gift for the purpose of enabling him to engage, in the soda water business as the defendant desired him to do, and the defendant insisting that when the check was given a loan was clearly understood.

In the charge the court reviewed the many items of the account, and instructed the jury that they might consider the evidence as to the $3,000 loan as all other evidence in the case. The defendant excepted to that portion of the charge permitting the jury to consider the matter of the $3,000 loan, on the ground that it was not available as a defense because barred by the Statute of Limitations. The jury returned a verdict in favor of the defendant, and from the judgment entered thereon the plaintiff appeals.

The question as to the $3,000 loan was properly submitted to the jury for the reason that there was presented a long account extending over a- period of years, which is sufficient to take the item from the Statute of Limitations under section 386 of the Code of Civil Procedure, which provides that In an action brought to recover a balance due upon a mutual, open and current account, where there liave been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side.” Furthermore, in his first cause of action, which involves a contract extending over a period of nearly ten years, and which covers the time when the loan referred to was made, the plaintiff admitted that the defendant was entitled to be credited with certain loans, although they were not specifically set forth.

The questions at issue, which involved really an accounting between the parties, were for the jury, being questions of fact; and having been presented in a charge to which but a single and untenable exception was taken — that relating to a consideration of the §3,000 item—■ the verdict should not be disturbed unless affected by erroneous rulings upon evidence admitted or rejected. In this last connection, it is strenuously insisted by the appellant that it was error for the judge to admit in evidence at the early stage of the trial a book kept by the defendant which was partly in English and partly in German, and which purported to show the state of the account between the parties and the amounts of moneys advanced or loaned by the defendant to the plaintiff. The defendant had testified that the entries were made by her in the book at the time when the transactions took place, and were in all respects just and fair, and that therein she noted all moneys which she advanced, as ■well as all moneys paid by the plaintiff to her in payment of such advances; that such book correctly showed the condition of the account between them, and that without the aid of it she had no such independent recollection of the facts as to be able to give the items of the account.

Passing, without deciding, the question of the competency of the book, we think that undue stress is placed by the plaintiff upon its admission. Although admitted in evidence, it does not appear that the book was read to the jury, or that they inspected it; and upon its first appearing that the book was partly in English and partly in German, the court directed that it should be stricken out, and this was done in a way that could not but have impressed the jury that it was no longer in the case for any purpose. Thus, in making the ruling, the learned trial judge said, referring to the book : I assumed that it was in English. If it is in German, it is not admissible. The book will have to be excluded if it is in German, and some examination will have to be made of her. This book will have to go out. The stenographer will enter on the record that the book having been submitted to the court, and it having been found to be partly in German, the ruling heretofore made admitting it is withdrawn and reversed, and the book is excluded because that would be a manifest error to admit a document which is in German.”

The question, therefore, presented by this exception to permitting the book to be originally introduced, is, whether, assuming such ruling to be erroneous, it was fatal, notwithstanding that the book was subsequently excluded, to the validity of the verdict. The plaintiff accepted the benefit of the ruling excluding the book, acquiesced in the trial’s proceeding and took the risk of a verdict, and now that it is unfavorable to him, he complains of the harm done by the ruling made. We think that the plaintiff, having elected to proceed, without having called the attention of the trial judge to the circumstance complained of, is bound by such election, and that it is too late to urge such a ground upon appeal as a reason for a reversal of the verdict which,1 upon conflicting evidence, was reached by the jury. Permitting the defendant as a witness to refresh her memory by reference to the book after it was excluded as evidence in itself, was not error ; for the reason that it was proper t'o permit her to refer to entries she had made at the time in reference to transactions which were numerous, and extended over a period of years, and which, without the aid of some memorandum, she could not be assumed to be able to give in detail from memory.

The other rulings upon evidence we have examined, but do not regard them of sufficient importance to warrant any extended comment. The questions at issue were for the jury, and there being no legal ground that would justify our setting aside the verdict, the judgment and order should accordingly be affirmed, with costs.

Rumsey, Patterson and Ingraham, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting):

I dissent. The error was not in the first ruling in relation to th^ book; but it was in afterwards allowing the defendant to read the contents of the book to the jury, without having in any way laid a proper foundation for the introduction of the book in evidence. The reading of the contents of the book to the jury certainly could not be permitted, if the book itself could not be admitted in evidence.

Judgment and order affirmed, with costs.  