
    Emily Linden, Appellant, v. Ferdinand M. Thieriot and Others, as Executors, etc., of Peter Marie, Deceased, Respondents.
    
      Entries in the books of a defendant, charged with receiving certain securities, and testimony that the books contained no entries of the securities in question, a/re incompetent.
    
    In an action brought to recover the value of certain securities, among which were 200 shares of stock of the Retsof Mining Company, which the' plaintiff claimed to have delivered to the defendants’ testator in his lifetime, it was conceded that the testator had at one time held 200 shares of Retsof Mining Company stock belonging to the plaintiff, but the plaintiff claimed that he also held 200 more of the shares of that stock belonging to her.
    Upon the trial the defendants offered in evidence the testator’s check books for the purpose of showing that they contained entries with respect to 200 shares of Retsof mining stock and not 400 shares, and that they contained no other entries of transactions w^th the plaintiff. The accountant testified that he- had also examined the testator’s- journal and ledger, and that he did not find in the “books” any entries other than those relating to the.200 shares.
    
      Held,, that the admission of such evidence constituted prejudicial error;
    That the book entries were not admissible as part of the res gestae or as declarations against interest.
    Appeal by the plaintiff, Emily Linden, from a judgment of the Supreme Court in favor of the defendants, entered in the'office of the clerk of the county of New York on the 21st day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s- office on the 18th day of December, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Frederic R. Kellogg, for the appellant.
    
      Charles E. Hughes, for the respondents.
   O’Brien, J.:

The plaintiff sues to recover of the executors of Peter Marie, deceased, the value of certain securities alleged to have been delivered to him in his lifetime and not returned and as to some of which he guaranteed her a certain sum. Three causes of action are stated, first, to recover the sum of $8,000 which the plaintiff claims the testator guaranteed would be the proceeds of 200 shares of stock of the Eetsof Mining Company which she delivered to him; second, to recover the sum of $6,500, the value of 100 shares of Amalgamated Copper Company stock alleged to have been delivered by the plaintiff to him to be sold by him, and third, to recover the sum of $13,900 the proceeds of the sale of six bonds of the Chicago G-as Light Company and eight bonds of the Eetsof Mining Company alleged to have been delivered to him by the plaintiff.

There are two serious questions presented upon this appeal. The first is whether with respect to each of the three causes of action the plaintiff made out a prima facie case entitling her to go to the jury, and the second whether, assuming that such a case was made out as to one or all of the three causes of action, the rulings which admitted in evidence the check book, and the testimony relating to it and to the journal and ledger of Peter Marie, deceased, were proper. If the first question can be answered in the negative then it would follow that the plaintiff was in no way injured by testimony admitted, no matter how incompetent it may have been. We are, therefore, required to take up the causes of action and refer to the facts which were produced to support them.

The first cause of action relates to 200 shares of the common stock of the Eetsof Mining Company. With respect to this stock it was claimed that Mr. Marie advised the plaintiff to change the investment and that she delivered the shares to him upon his promise that he would sell or exchange them and that he would guarantee to her that the proceeds should not be less than $8,000 which he would reinvest foivher account in other securities. In the bill of particulars the plaintiff states that she originally received these shares from Mr. Marie in 1895 and that the agreement alleged in . the complaint was made between September 1 and December 1, 1901, the delivery of the stock having been made shortly thereafter by the plaintiff personally.

• The evidence to support this cause of action as amplified by the bill of particulars, is very unsatisfactory, there being no memorandum of any kind in writing that Mrs. Linden ever had 400 shares of common stock or shares other than the 200 which aré now in her possession.' The only verbal testimony on this subject is that given by her husband who testified that after June, 1895, he saw in his zwife’s possession 400 shares of Retsof Common and 8 bonds of Retsof Mining Company and some bonds of Chicago Gas Light and Coke Company, which latter are the bonds upon which the claims are made in the third cause of action. This testimony of the litis^ band as to having seen 400 shares in her possession after June, 1895, is all there is in the case which definitely tends to prove that the plaintiff had 400 shares. And it will be noticed that the time which he fixes is some years prior to the date alleged by the plaintiff as the 1 timé when she made the agreement with Mr. Marie with reference to these shares. • '

' We say advisedly that this is the only testimony which definitely bears upon the plaintiff ever having had 400 shares, because while the husband testifies as to conversations which he overheard bétwéen his wtife and Mr. Marie about Retsof stock, such conversations, as well as the letters of Mr. Marie upon the same subject, relate only , to 200 shares of Retsof which he held of hers and- about which there was no dispute; and there is nothing Which in any definite manner shoWs that there Was any other 200 shares.

Thus with respect to the more important of these conversationwhich the husband places in August, 1902, as having taken place1 at his residence, he testifies: “ He (Mr. Marie) said ‘ the 2Ó0 shares of the Retsof which I have of yotirs and which I took and bought of you at 40’ and the 100 shares of Amalgamated Copper which I can sell for 65 making $14,500 I will buy for you, I think, 100 shares of Pennsylvania Steel Preferred and 100 shares of American Smelting.’ ” And in the letter of September 29, 1902, written by Hr. Marie to the plaintiff and which the husband testified was a letter confirming the August conversation, Mr: Marie, among other things, writes: “ Will you let me know when and what dates you got your dividends on the Retsof in 1901 and the total for the year and when in 1902 and the total so far for 1902? * * * Also mention the same about Copper — How much you got from the company and how much from me and the dates. * * * If I can get you a solid total investment of $2,600 it is all I at present can look forward to. I think, when money gets easier, of exchanging your 200 Retsof which has no market price for 100 Penn. Steel prfd. paying '¡fo and 100 copper for some steady 1% say 100 shares American Smelting *1% prfd. The Penn. Steel prfd. is quoted at 1001-bid 101 asked. The Smelting prfd. about 98. The exchange will cost me from $5,000 to $5,500 estimating Retsof at 40 and copper 65. Consult your business friends and see if you can learn anything about these investments. If I get better I shall wait until the present pressure of money is over and we get good returns for our large crops in November.”

There was no evidence that the plaintiff had been receiving through Mr. Marie dividends on the Retsof stock in 1901 and 1902 other than the 200 shares which stood in his name and which concededly belonged to the plaintiff. As stated, therefore, the evidence in support of the plaintiff’s first cause of action is meagre and unsatisfactory. Not only is there no evidence of plaintiff’s ever having given Mr. Marie any 200 shares of the Retsof stock in addition to the 200 shares which stood in his name, but the proof is equally unsatisfactory in establishing the agreement of guaranty with respect thereto which is alleged. The most that can be said is that the evidence might justify the inference that Mr. Marie purchased 200 shares of Retsof from the plaintiff at forty dollars a share which, in form at least, is a variance from the agreement alleged that he took the stock as bailee, having guaranteed that she should receive therefor forty dollars a share. The variance, however, is not serious or fatal, and taking these patches of evidence we are inclined, though with some hesitation, to think that there was enoiigh to require the submission of the first-cause of action to the jury and had they on . this evidence alone found for the defendant we should not disturb the verdict.

What has been said with respect to the character of the proof as to the first cause of .action is equally applicable to the evidence offered in support of the second and third causes of action which related to the 100 shares of Amalgamated Copper and the bonds, and as to them also our conclusion is that the jury should determine the issues presented.

If, however, evidence that Was incompetent and which might affect injuriously the plaintiff’s rights was admitted, then we cannot say that the verdict in defendants’ favor upon the three causes of action was the result of the jury’s considering alone the evidence adduced by the plaintiff. This brings us, therefore, to the second question as to the competency of the evidence with respect to the check books, journal and ledger of Mr. Marie.

The defendants offered the check books for the purpose of showing that they contained entries with respect to 200 shares of. Retsof and not 400 shards and contained no other entries of transactions with the plaintiff; and the accountant testified that he had also examined the journal and ledger and thereafter said that he did not find in the books ” any entries other than as to the 200 shares; and on cross-examination he testified that there were no such éntriés in the check books, journal or ledger.

• As argued by the appellant entries in the books, of the testator and the testimony as to absence of entries cannot be claimed to be admissible, unless such entries are considered as part of the res gestae involved in the action or come under the head of declarations against interest. Entries are not admissible as part of the res gestae even though made at the time of a given transaction by one of the parties in his own books when made as here without the knowledge of the other party; and, moreover, the res gestae here is the alleged delivery of the 200 shares in dispute and the delivery of the other stocks and bonds, whereas the entries related to 200 shares not in dispute. And we think that the further contention of the appellant is also sound, that these entries caniiot be regarded as admissible Upon the ground that they were declarations against interest. Here again the 200 shares mentioned in the check books were not the shares and bonds in dispute; and, as said in Brennan v. Hall (131 N. Y. 167): “ To bring the declarations and entries in such a case within the exception, the fundamental requirement is that they should at the time be against the interests of the person making them.”

Upon this ground alone, therefore, we think it was error to admit the books and the testimony relating to them, and that this error is of such a serious nature as to require a reversal of the judgment.

The respondents contend that the error in admitting the books and the testimony of the accountant can only be regarded as bearing upon the first cause of action. In this, however, we think the respondents are in error, because, even though there were no entries to be found in the books which related to the securities mentioned in the second and third causes of action, the proof that there were no such entries therein gave rise to the inference that Mr. Marie had no such transactions with the plaintiff. It is not easy to distinguish between the probative force of this negative evidence, based upon no entries in the books, and positive entries therein made. The entries in the books were incompetent as to all three causes of action, and even though the respondents were right that so far as positive evidence of actual entries is concerned none was introduced that bore upon the second and third causes of action, still the examination of the accountant, who was allowed to testify that there were no entries in Mr. Marie’s books relating to the transactions in dispute, which testimony was introduced undoubtedly for the purpose of having the jury infer that there never were any such transactions, had a necessary bearing upon the questions which were for the determination of the jury. Nor does the fact that most of the testimony as to the journal and ledger came out in cross-examination help the respondents, for the check books had already been admitted and testimony given that they contained no reference to the plaintiff save as to the 200 shares, and the journal and ledger were referred to as having also been examined, and thereafter the accountant testified with respect to the second cause of action that there was nothing “ in the books ” kept by Mr. Marie referring to the plaintiff and the Amalgamated Copper. Even though the check books only were thus referred to, the effect of the testimony, in view of the previous mention of the other books, was to create an inference that nowhere was there any entry save as to the 200 shares of Retsof. »

For the error in the admission of the books and the testimony relating to them, therefore, we think that as to all three causes of action the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., McLaughlin, Hatch and Laughlin, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  