
    Eugene Smith, Ex’r, Resp’t, v. Fredericka Rentz, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed February 12, 1892.)
    
    1. Evidence—Books of account produced on notice.
    Where a hook or document is produced on notice, and the party calling for it merely inspects it, that does not make it evidence in the case for the-party producing it.
    3. Same.
    The rule that books of a tradesman, or other person engaged in business, containing items of accounts, are admissible in favor of the person keeping them, against the party against whom the charges are made, after certain preliminary facts are shown, has no application to the case of books or entries relating to cash transactions between the parties.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff on report of' referee.
    . Leopold Leo, for app’lt; H. B. Glosson, for resp’t.
    
      
       Reversing 37 St. Rep., 695.
    
   Andrews, J.

The action was brought to recover moneys advanced and paid out by the plaintiff’s testator for the defendant. The complaint alleges that from 1882 to 1887 the testator was the banker and general business agent for the defendant, and that, during said years the defendant, from time to time, deposited moneys with the testator, and the latter, as requested "by the defendant, from her funds in his hands, and when these were insufficient, from his own, paid her different sums in cash, and also-paid taxes and tradesmen’s bills for which she was liable, and that there was a balance due the testator, on account of such payments, of $3,744.75, which the plaintiff claimed to recover. The-answer contained a general denial, and interposed special defenses. On the trial before a referee the plaintiff offered in evidence the-ledger kept by the testator containing the items of the alleged account. It was admitted against the objection of the defendant..

Evidence was given on the part of the plaintiff independently of the ledger, tending to establish many of the items of the account, but a considerable number of the items for which a recovery was had are supported by the ledger alone. If the ledger was improperly admitted in evidence, the judgment must be reversed. It was admitted not only to establish the items of which there was no other proof, but its admission may have influenced, the referee in passing upon the items of the account of which it. was not the sole evidence.

The referee admitted the ledger on the ground that the defendant had under the Code examined the plaintiff before trial, and in that proceeding had given notice to the plaintiff to produce the-books of the testator, and that upon such notice the plaintiff produced certain books of the decedent, among which was the ledger-containing his account with the defendant, which was inspected by the defendant’s counsel. The referee held that the ledger was-thereby made evidence for the plaintiff.

The ledger was not used on the examination, nor were any questions asked founded upon the entries therein.

A similar question was before the second division of this court: in Carradine v. Hotchkiss, 120 N. Y., 608; 31 St. Rep., 951. There the plaintiff on the request of the defendant’s counsel, made-on the trial, produced a letter and delivered it to the latter, who read it, but did not offer it in evidence. Thereupon, on demand of the plaintiff’s counsel, the court directed the defendant’s coun.sel to put it in evidence, and in obedience to such direction, to which the defendant’s counsel excepted, the letter was read to the jury.

When the case came to this court on appeal by the defendant,, this ruling was challenged as erroneous. The court so decided,. Haight, J., saying: “ Whatever may have been the ancient rule in England upon the subject, we do not understand that the fulingof the court can be sustained under any rule now existing in England or in this state.” But the court being of opinion that the letter did not prejudice the defendant, affirmed the judgment.

It is claimed that the decision upon the point of -the admissibility of the letter was unnecessary, and therefore is not binding. The question was properly raised and was decided. Its" decision naturally preceded the decision of the subsequent question, and the declaration of the court was not obiter.

We think, moreover, that the decision in the case accords with the view which has prevailed in the courts of this state and the-practice of the profession. In Lawrence v. Van Horne, 1 Caines, 276, the defendant gave notice to the plaintiff to produce on the-trial a certain letter, which the plaintiff refused to do unless the defendant would engage to read it in evidence. The defendant, claimed the right to inspect the letter before deciding whether he-would read it in evidence. The judge ruled that inspection could not be demanded except on the terms which the plaintiff imposed. On appeal one of the judges was of the opinion that the ruling was right, and that the court could not compel a production of a paper for inspection only. But the point was not decided.

In Kenny v. Clarkson, 1 Johns., 385, Spencer, J., said: “I must not be understood as sanctioning the course adopted at the trial in admitting the paper to be read without proof because-notice had been given to produce it and it had been called for and perused. The case of Lawrence v. Van Horne, 1 Caines, 276, settles nothing, the then chief justice expressing no decided opinion on the question, and the rest of the court were equally divided. It appears to me that the notice to produce a paper and eallingfor its inspection ought to be considered as analogous to a bill for discovery, where most certainly the answer is not evidence but for the adverse party. I think it is our duty to adopt such a course as will not needlessly drive parties into equity for discovery.”

The doctrine announced by Judge Spencer has, so far as our reports show, been acquiesced in by the courts and the bar of the-state without question until a recent period.

The English rule has not been uniform. Lord Kenyon, in Sayer v. Kitchen, 1 Esp., 209, held that production of a paper on notice did not make it evidence. The rule seems to have been held otherwise by Lord Denman in Calvert v. Flower, 7 Car. & P., 386, and in two or three other nisi prius cases, but without, any special examination.

The courts of Pennsylvania and New Hampshire held the view that production and inspection alone does not make the paper evidence. Withers v. Gillespy, 7 Ser. & Raw., 10; Austin v. Thomson, 45 N. H., 113. Gibson, J., in Withers v. Gillespy, referring to the practice on bills of discovery, says: “The reasons drawn from analogy render the argument almost insuperable.” The New Hampshire case was decided upon an elaborate examination of the English and American authorities, and contains the most thorough opinion on the question to be found in the books.

The courts of Massachusetts, Maine and Delaware seem to have followed the supposed English rule on the subject. It was said in the earliest case in Massachusetts on the subject, Com. v. Davidson, 1 Cush., 33, that it was a mooted point whether calling for the books of the opposite party and inspecting them, and doing nothing more, makes the books evidence; but in Clark v. Fletcher, 1 Allen, 53, the point was decided. In Maine, Blake v. Russ, 33 Me., 360, the question was decided without assigning .any reasons, and the ruling in the Delaware case, Randel v. Chesapeake Co., 1 Har., 284, was made on the trial, and so far as appears without any examination. The authorities on the question are divided. But we perceive no reason for departing from the rule •as understood in this state. The claim that it gives the party calling for a paper an unfair advantage, if he may inspect it and then decline to put it in evidence, seems to us rather specious than sound. The same objection would lie in case of bills for discovery, but it was the, settled rule that an answer though under oath was evidence only for the party who obtained it The party who has in his possession books or papers which may be material to the case of his opponent, has no moral right to conceal them from his adversary. If on inspection the party calling for them finds nothing to his advantage, his omission to put them in evidence does not prevent the party producing them from proving and introducing them in evidence if they are competent against the other party. The party calling for books and papers would be sub: jected to great hazard if an inspection merely, without more, would make them evidence in the case. That rule tends rather to the suppression than the ascertainment of truth, and the opposite rule is, as it seems to us, better calculated to promote the ends of justice.

The production of books and papers on notice is the voluntary act of the party. If he refuses it may, as is claimed,'authorize the other party to give secondary evidence of their contents, which the party having possession cannot then answer by producing them. But if they contain facts favorable to the other side, they ought to be disclosed, and if production is refused the party refusing may justly incur the danger of having secondary proof given of their contents.

The claim is also made that the books were competent as original evidence of the entries under the rule making books of account in certain cases evidence in favor of the party keeping them. We think there is no foundation for this contention. The rule which prevails in this state (adopted it is -said from the law of Holland) that the books of a tradesman or other person engaged' in business, containing items of account, kept in the ordinary course of book accounts, are admissible in favor of the person keeping them, against the party against whom the charges are-made, after certain preliminary facts are shown, has no application to the case of books or entries relating to cash items or dealings-between the parties. This qualification of the rule was recognized, in the earliest decisions in this state and has been maintained by the courts with general uniformity. Vosburgh v. Thayer, 12 Johns., 461. It stands upon clear reason. The rule admitting account books of a party in his own favor in any case was a departure from the ordinary rules of evidence. It was founded upon a supposed necessity and was intended for cases of small traders who kept no clerks, and was confined to transactions in the ordinary course of buying and selling or the rendition of services. In these cases some protection against fraudulent entries is afforded in the publicity which to a greater or less extent attends the manual transfer of tangible articles of property or the rendition of. services, and the knowledge which third persons may have of. the transactions to which the entries relate.

But the same necessity does not exist in respect to cash transactions. They are usually evidenced by notes, or writing, or vouchers, in the hands of the party paying or advancing the money. Moreover, entries of cash transactions could be fabricated with much greater safety and with less chance of the fraud being discovered than entries of goods sold and delivered, or of services rendered.

It would be unwise to extend the operation of the rule admitting a party’s books in evidence beyond its present limits, as would be the case, we think, if books containing cash dealings were held to be competent. Parties are now competent witnesses in their own behalf. A resort to books of account is thereby rendered unnecessary in the majority of cases.

We think the ledger was erroneously admitted in evidence, and the judgment below should therefore be reversed and a new trial, ordered.

All concur, except Maynard, J., taking no part  