
    William G. Irving, Resp’t, v. Sumner E. Claggett, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1890.)
    
    (Evidence—Memoranda—Proof necessary to make entries competent.
    In an action for services rendered by plaintiff and his employees as detectives, plaintiff offered in evidence a book in which entries had been made by himself of the time during which his employees were engaged in the work. The entries were first made in another book, which was lost, from slips and reports returned by the detectives, which were also lost. The only evidence to prove the truth of the entries was the testimony of plaintiff and another witness that at different times they had observed the detectives in the apparent discharge of their duties. Held, that the charges were not sufficiently authenticated to make them competent evidence against defendant, and that they were not made so by the fact that what the detectives reported was communicated to defendant’s attorney, it not appearing that the extent of their services was reported to him or that he accepted their reports for that object; that to make the entries competent it should be shown that the detectives truthfully reported the time devoted by them to the work and that the charges were accurately entered in the books.
    (Brady, J., dissents.)
    Appeal from a judgment recovered on the report of a referee.
    
      Nathaniel A. Prentiss, for app’lt; J. A. Dennison, for resp’t.
   Daniels, J.

The plaintiff’s demand was for services rendered by himself and by other persons in his employment as detectives and for money expended by him, in searching for and securing witnesses to be used in support of a contest made concerning a will, which was heard and tried before the surrogate of the county of Hew York. For himself he claimed to have become entitled by the result of the contest to the sum of $2,500, and the residue of the charges for services were for detectives in his employment in and about the same business amounting to the sum of $5,570. It was generally stated by himself in the evidence which he gave upon the trial, and by the witness Wandell, who was examined on behalf of the defendants, that detectives were employed by the plaintiff and rendered services in discovering and obtaining testimony and witnesses, to aid the defendants in their contest. And to prove the number of days during which these detectives rendered their services, and for which it was claimed the plaintiff was to receive the sum of ten dollars a day, he produced and offered to read in evidence -a book in which the entiles had been made by himself.

These entries are stated to have been first made in another book, which was not produced upon the trial, but which had been lost, or disposed of, and was consequently out of the power of the plaintiff. The entries made in that book, he testified, were from slips and reports returned to him by the detectives, and that the book produced by him contained an accurate copy of the entries made in the first book from these slips and reports. The slips themselves were not produced, but they had been lost or destroyed, and no evidence except of the most general nature was given on behalf of the plaintiff to prove that the statements contained in the reports and slips were truthful, or that the services for which the charges were made had in fact peen rendered. There was this general evidence that he at different times, and also this other witness, had observed the different detectives apparently in the discharge of their duties. But these observations were casual only and in no manner proved that the detectives had performed the extent of services mentioned and charged for in the book. When the book was offered to be used in evidence it was objected to as having been made upon reports received from other persons, and as incompetent. But the objections were overruled and the defendant’s counsel excepted, and the book was permitted to be used by way of evidence in support of these charges. The plaintiff without it had no recollection of the items and was dependent upon these charges in the book to make out and sustain his action for the compensation claimed to be payable to the different detectives. After it was ruled by the referee that the book might be used by the witness to make out his case, it was then agreed that a copy of the entries in the book might be put in evidence in the case subject to the objections and exceptions already taken, and that copy was introduced. And upon the force and effect of this evidence the referee made his report by which he allowed the charges made in favor of the plaintiff, and after deducting $3,600 paid to him, directed a judgment for the sum of $5,331.88, the balance found to be due him, together with interest. These items of charges for the services of detectives were no otherwise proved than by the entries made in the book by the plaintiff from the preceding book in which the entries were made from the slips' made and reports furnished of the services claimed to have been rendered. And the proof upon which the case was heard and decided was in substance and effect no more than what the detectives themselves had stated in their reports, or was mentioned in these slips, as to the extent of the services performed by them. The evidence traced back in this manner consisted as to the extent of the charges of no more than the unsworn statements, or reports, of the detectives, and that was not evidence against the defendants in this action. And they were not made evidence by the circumstance that what they had reported was communicated to the attorney for the defendant. For it was not shown that it was reported to him the extent of services they claimed to have performed, or that he assented to or accepted their reports'or statements for that object; but what seems to have been reported to him was, what these detectives had observed and discovered, and the witnesses who would be obtained by reason of their services.

This evidence fell far short of what is required to authenticate charges made in this manner so as to render them admissible against the party or parties to be affected by the charges. What should have been done to make this book or the charges contained in it evidence, was proof from the detectives themselves, or otherwise, that they truthfully reported to the plaintiff the time devoted by themselves to this employment and then after that proof should be made the further evidence of the plaintiff that the charges were accurately entered in the books might have rendered them evidence. The legal rule upon this subject was very fully examined in Mayor, etc., v. Second Ave. R. R. Co., 102 N. Y., 572 ; 2 N. Y. State Rep., 526. But there the performance of the services charged in the books were shown to have been rendered and reported accurately before making the charges, and to have been correctly entered in the books which were received. And that is the least, in a case of this description, upon which the law will permit the entries in the books to be read in evidence. Gould v. Conway, 59 Barb., 355; Ives v. Waters, 80 Hun, 297; Mayor, etc., v. Second Ave. R. R. Co., 31 id., 241.

In this last case the opinion to this effect was delivered by Mr. Justice Brady. An exception exists in favor of a party keeping his own books, where upon proof by persons with whom he has settled, by the books, that he keeps true and honest accounts, and that some of the articles have been delivered the books may be read. McGoldrick v. Traphagen, 88 N. Y., 334. But this case is not within that exception. Mo further evidence proving the extent of the services of the detectives was given sustaining the ruling of the referee by which these entries were permitted to be read as evidence. The testimony of Wandell, one of the detectives, on the contrary, was to the effect that the entries made in the first book were made by a young man in the plaintiff’s employment, and if he was right as to the fact, then still further evidence was required from this person to prove that his entries were correctly made. In no view of the evidence as it was given were the entries entitled to be received or acted upon as proof by the referee, and the judgment should be reversed and a new trial ordered, with costs to the defendant to abide the event. ,

Yan Brunt, P. J., concurs.

Brady, J.

(dissenting)—The defendants were the heirs and next of kin of James H. Payne who died in December, 1885. One John H. Wardwell commenced proceedings before the surrogate of this county to establish an alleged lost will, by the terms of which the estate of James H. Payne was given to him.

Theodore H. Swift was the attorney of record for the defendants in that proceeding. He was duly authorized by them to appear for them in the proceeding mentioned and in any and all proceedings which might be brought against the estate of the deceased, and to do any and all things necessary to protect their interests therein. On the 8th day of October, 1886, he made an agreement with the plaintiff for his employment and that of a number of detectives for work to be done on the part of his clients who were contestants before the surrogate, agreeing to pay them for their services ten dollars a day and their expenses and disbursements, and also as an inducement to the plaintiff'to give his personal time and attention to the case, agreeing to pay him $2,000 or 82,500 in case the defendants were successful. Pursuant to th’s contract the plaintiff employed a number of men, entered upon the performance of his duties, and was continuously engaged therein from the 9th day of October, 1886, to the 2d of February, 1887, both inclusive, and rendered services which were substantially continuous night and day during the period mentioned. He was personally present every day during the trial, and made his reports every day to the attorney and counsellor for the defendants of what his men had done, and was in consultation with them every day, and sometimes more than once a day, all of which work it appears was necessary for the protection of the defendants’ interests. It also appears that the work for each day was laid out under the immediate direction of the defendants’ attorney and counsel, and that the -information collected was used on the trial before the surrogate, and it does not appear that any complaint was ever made as to the manner in which these services were performed, or that the expenses incurred and charged were improper. It also appeared that the defendants’ counsel expressed a wish that the case should be thoroughly investigated, the object being to frustrate what was conceived to be a fraudulent scheme on the part of Wardwell. The contestants were successful. It must be said further that there was no contest as to the fact that there was a contract made with the plaintiff, or that services were rendered under it, the real issue being as to the extent and value of the services, and as to the additional sum to be paid to the plaintiff in case of success.

The referee found in favor of the plaintiff the balance due under the general employment on the terms mentioned, and that §2,500 additional was also due to him under the contract

At the close of the plaintiff’s case, however, the defendants’ counsel moved to dismiss the complaint upon three grounds :

First. That there was no evidence of the rendition of services in excess of the sum received by the plaintiff.

Second. That the plaintiff had failed to prove that what was done by him under his employment by Swift was within the .scope of the power conferred upon the latter.

Third. That the testimony proved the agreement to have been made, and that the credit was given by the plaintiff to the administrators, and the action should therefore have been brought .against them.

There was no defense set up in the answer suggesting this last proposition. Independently of which the testimony clearly shows that the agreement was made with Swift who was the agent and attorney of the defendants, and in reference to whom it appeared that he would not have taken the case without such authority from the heirs.

With regard to the second proposition, it is only necessary to say that it already appears that the heirs conferred upon Swift the power to do what he deemed necessary for the protection of their interests, and what was done therefore by him was done with that end in view. In this result the plaintiffs’ claim is sustained by the testimony of Titus, who, it appears, was subsequently employed in the defendant’s interest to oversee that the detective work was done, and who was in constant communication and consultation with Mr. Swift.

in relation to the first proposition it must be said that it concedes the employment of the plaintiff to have been a proper one under due authority for the reason that it disavows only the rendition of services in excess of the amount paid and which was clearly paid under the contract made with the plaintiff.

' The serious contention however springs out of the peculiar1 character of the evidence by which the services were proved. The plaintiff produced his book of account. It was one kept by him in the ordinary course of his business, the entries in which were-made in his own handwriting. It was made up in the following way: Every morning each of the detectives who had been engaged the day or the night before, reported what work he had done on what were called slips. These were sent to Mr. Swift,, the attorney. The plaintiff entered these results also, and upon his day book the name of each man, the afñount of "the expenses-paid him, and the amount of his salary, and from this day book and the slips the account book produced was made up.

It was a book of original entry except the dates and the amount, of expenses. The day-book was lost and from the evidence it seems to have been carried away and sold with the waste paper of the plaintiff’s office. The plaintiff testifies that the entries were correctly made from the slips given to him, and were made at or' near the date of the slips. And it seems that at the time of the receipt of the slips he was well advised of their accuracy from his knowledge of the services to which they related. He said that, he was out every day from morning until night; that he was all over, at all times, overseeing his men; that he saw them every day, three or four times a day, so that he had a personal knowledge as to the rendition of the services by the persons whom he employed, and this evidence was supplemented by that of Titus, who we have seen was specially employed to oversee the detective work. He approved of the reports of the men having, if not ample, certainly sufficient knowledge upon the subject tosíate that their work was done. In addition to which it must be kept in view that the result of these reports was communicated daily to the defendants’ attorney, Swift, and whatever was considered valuable used to protect the defendants’ interests. But the objection still exists that none of the detectives whose work is indicated by the slips appeared as witnesses, and that in that respect the testimony upon which the plaintiff’s case rests differs from some of the adjudicated cases. But this difference is supplied sufficiently, it is thought, within the doctrine of McGoldrick v. Traphagen, 88 N. Y., 334; and The Mayor v. Second Ave. Ry Co., 102 id., 572; 2 N. Y. State Rep., 526, by the statement, of the plaintiff of his own work, and of Mr. Titus of his work, and. their supervision of the men engaged, and indeed of one of defendant’s witnesses, Mr. Wandell, that the men were engaged in doing the work which was contemplated by the agreement between the plaintiff and Swift, acting on behalf of the defendants. The evidence herein showed thus the engagement of the men; a report by them of each day’s work to the plaintiff; his own personal inspection of them while at work and that of Mr. Titus, and the record of the slips stated with their results.

This proof is regarded as stronger than that which was held to be sufficient in the case of McGoldrick v. Traphagen, supra, and as decidedly within the principle stated in Mayor v. Second Ave. R'y Co., supra, in which, where an account had been kept in the ordinary course of business of laborers employed in the prosecution of the work, based upon daily reports of the foremen having charge of the men, who, in accordance with their duty, reported to another subordinate of a higher grade under the same common master, and he also, in the course of his duty, entered the time as reported, and the foremen testified that they made true reports and the person who made the entries that he correctly entered them, it was held that entries so made are admissible as evidence to show the amount of work done.

None of the other exceptions call for any particular comment It is sufficient to say that they are of no significance and are unavailing.

This leaves for consideration only the further question as to the propriety of awarding to the plaintiff the extra compensation of $2,500 which was given by the referee and which, as to amount, is abundantly sustained.

The estate was large and the amount in jeopardy very considerable, and more than ordinary devotion was excited by the voluntary promise that if the attempt to establish the alleged lost will was defeated an extra compensation would be given. This seems to have stimulated the plaintiff to extra exertion, for according to his evidence, which was not successfully gainsaid, he labored in the cause night and day, and was at all times at his post when required and no complaint was made against him or his methods by any person representing the defendants’ interests.

It may be said, in conclusion, that no doubt can be entertained of the value and efficiency of his services and that the claim, therefore, seems to be, in all respects, meritorious.

For these reasons the judgment should be affirmed, with costs.

Judgment reversed and new trial granted, with costs to the defendant to abide the event.  