
    NATIONAL ULSTER COUNTY BANK v. MADDEN.
    
      N. Y. Court of Appeals, Second Division ;
    
    
      May, 1889.
    [Rev’g 41 Sun, 113.]
    
      Witness’ use of original memorandum.] Although a witness may refer to his original memorandum for the purpose of refreshing his-recollection, the memorandum is not made admissible merely by his testimony to its truth, but its admission must rest on the principle of necessity for the reception of secondary evidence ; and it is not. admissible if his testimony fairly indicates that he has a distinct recollection of the facts to which the memorandum1 referred; unless the memorandum is shown to have been made as-part of the res gestee of a fact properly in evidence.
    
    
      Appeal from judgment of the General Term of the supreme court in the third judicial department affirming judgment-entered on verdict in favor of defendant.
    
      The action was brought by the National Ulster County Bank (now appellant) against Michael J. Madden (now respondent), impleaded with Sarah M. Fowks.
    
      John J. Linson, for appellant.
    
      E. S. Wood, for respondent.
    
      
      Note on the Use oí1 Memoranda of Forgotten Facts.
      This accords with the decision of the supreme court of the United States in Vicksburgh, &c. R. R. Co. v. O’Brien, 119 U. S. 99, 103. Compare Owens v. State, 67 Md. 307 ; s. c., S Cent. Rep. 871; 10 Atl. Rep. 210.
      The fact that a witness has forgotten details of a matter testified to-by him, often lets in evidence which would otherwise be incompetent. Thus, if a witness has forgotten details of a fact, he may testify that he once mentioned them to another person ; and such other person may then be called to prove what was so mentioned to him. Shear v. Van Dyke, 10 Hun (N. Y.), 528 (amount was thus proved). So if a conversation between two persons is proper evidence in an action against others, it may be proved by either or both of the parties between whom it took place, as when A. communicated to B. a statement made-to him by C. and on his examination could not recollect its substance,. C. was held to be a competent witness to prove it. Green v. Cawthorn, 4 Dev. (N. C.), 409, 410 (civil case); and Wharton Crim. Ev- § 360.
      So a material ultimate fact may be proved by. showing by a witness. that he knew the facts in relation to the matter which is the subject of investigation, and communicated them to another person at the time, hut had forgotten them ; and then by the testimony of such other person to the effect that he entered at the time the facts communicated, and by the production of the book or memorandum in which the entries were made. Mayor v. Second Ave. R. R. Co., 102 N. Y. 572; s. c., 3 Cent. Rep. 823 ; Payne v. Hodge, 7 Hun (N. Y.), 612 ; (aff’d in 71 N. Y. 598, without opinion) Adams v. People, 3 Hun (N. Y.), 654 (aff’d iu 63 N. Y. 621; without discussing this point). [Foi the. general rule as to proving entries, see Abb. Tr. Ev. 319, 327; and Bridgewater v. Roxbury, 54 Conn. 213; s. c., 8 Sew Engl. Rep. 154, 156.] [Por a strong authority as to the necessity of personal knowledge on the part of those making the entries, see Chaffee v. United States, 18 Wall. (U.S.) 516.]
      So a witness having no recollection of the details of a fact claimed " to have occurred in the course of the routine of his official business, may testify to the uniform routine, and that the details of this transaction must have been in accordance with that routine or habit. People ex rel. Phelps v. Oyer & T., 83 N. Y. 436, 447,451; aff’g People v. Genet, 19 Hun (N. Y.) 91 (Mayor’s testimony to what must have induced him to countersign warrant). S. P., Morrow v. Ostrander, 13 Hun (N.Y.) 219.
      In the application of this principle to accounts of numerous items, it is well settled that a witness called to prove a number of items may use an account or list to refresh his memory, being required by the court thereupon to testify to each item separately. Or if without the account he cannot recollect all the items, he may, in the discretion of the court, be allowed to testify to the result and the correctness of the account; and the account is then admissible as a statement in detail of what he has testified to. Singer v. Brockamp, 33 Minn. 501; s. c., 24 Northwestern Rep. 189 ; McCormick v. Pennsylvania Cent. R. R. Co., 49 N. Y. 303 ; rev’g 8 Alb. L. J. 129; Howard v. McDouough, 77 N. Y. 592; aff’g 8 Daly (N. Y.) 365; compare Harvey v. Cherry, 76 N. Y. 436 ; aff’g 12 Hun (N. Y.) 354 (where exclusion was sustained).
      Another principle has sometimes been successfully invoked to secure the admission of such evidence in cases where there is a direct conflict between the testimony of the parties, viz.: that in a conflict of testimony, accounts of the parties, and accounts and memoranda of a
      
        person who is since deceased, may be received as corroborating the testimony of a witness to the facts entered in the accounts, although the accounts are not competent as original evidence. See Charles v. Bishoff (Pa. 1885), 1 Central Rep. 618, and Moffat v. Moffat, 10 Bosw. (N. Y.) 468. In the latter case it was held that testimony as to the nature and contents of documents long since destroyed being in conflict, entries in the account books of the counsel who drafted the documents " relating thereto, bis drafts thereof, and other papers drafted by him at the same time relative to the same subject, the counsel being deceased, are admissible as corroborative.
      This principle was adverted to by. the supreme court in the ■decision reversed in the text as being in part, at least, the foundation of that decision. But on the other hand, it is well- settled that as a general rule in a conflict of testimony of the parties, neither can corroborate his'testimony by evidence that at or about the time in «question, he stated the same facts to a third person, in the absence of •adverse party. Wallace v. Story, 139 Mass. 115 ; Eggleston v. Columbia Turnpike Read, 82 N. Y. 278; rev’g 18 Hun (N. Y.) 146.
    
   Bradley, J.

The action was brought to recover the amount of eighteen checks drawn by the defendant, Sarah M. Fowks, by her attorney, Horatio Fowks, upon the National Bank of Bond out and payable to the order of the defendant, Madden, and endorsed by the latter. Madden alone defended, and alleged that after the cheeks were endorsed bv him, they were altered in respect to the time for payment, so as to make them payable at a future day without his knowledge or consent. He testified that when so endorsed by him no time of payment was expressed in any of them. When they were discounted by the plaintiff, they respectively appeared to be payable at specified times subsequent- to their dates. The defendant Madden also testified that when he endorsed the several checks, he made a memorandum entry of the dates, amounts and time when payable of them respectively, and in his examination in chief, in his own behalf, he was permitted against the ■objection and exception of the plaintiff’s counsel to read •such memoranda to the jury. The main question arises upon the admissibility of those entries in evidence. The rule in this State, prior to the decision in Merrill v. The Ithaca & Oswego R. R. Co., 16 Wend. 586, was that a witness might refer to his memorandum to refresh his •memory, and then was permitted to testify to the facts, provided he-could do so independently of it upon his recollection. That was the extent of the rule in this respect (Feeter v. Heath, 11 Wend. 479 ; Lawrence v. Barker, 5 Id. 801).

In the Merrill case, the court reviewed the cases, and cited text books upon the subject, and announced the conclusion, that original entries read by a witness and which he should testify, were correctly made, might be read in evidence, though he remembered nothing of the facts represented by them, but that to render such entries admissible, it should appear that “ every source of primary ■evidence had been exhausted.” Since then, so far as we have observed, it- has uniformly been held admissible for the witness to refer to the original entries in respect to the facts, which he is called upon to testify, and if he verifies their correctness and is unable to recollect such facts independently of 'such entries, they may be read in evidence (Bank of Monroe v. Culver, 2 Hill, 531; Cole v. Jessup, 10 N. Y. 96; Halsey v. Sinsebaugh, 15 Id. 485; Russell v. Hudson River R. R. Co., 17 Id. (134 ; Guy v. Mead, 22 Id. 462 ; Squires v. Abbott, 61 Id. 530-535 ; Howard v. McDonough, 77 Id. 592; Peck v. Valentine, 94 Id. 569; Mayor, etc. v. Second Ave. R. R. Co., 102 Id. 572-580; Brown v. Jones, 46 Barb. 400 ; Meacham v. Pell, 51 Id. 65 ; Kennedy v. O. & S. R. R. Co., 67 Id. 170-182).

The General Term cited on this question Guy v. Mead (supra) and made the remark, that while that ease differed from this in the fact that there the witness had .no recollection of the matter independently of the memorandum referred to, the court did not place its decision upon that ground, ~ Although in that case the court did not expressly declare that the admissibility of the evidence was dependent upon the want of recollection of the witness, the fact existed which rendered the paper competent evidence within the' rule as before stated. And reference was there, with apparent approval, made to Russell v. Hudson River R. R. Co. (supra), where the judgment of the court below was reversed for error in receiving a memorandum in evidence,, when for aught that appeared, the witness had recollection of the facts, to which he was called upon to testify, independently of it. And the cases above cited, determined subsequently to Guy v. Mead, state and adhere to the doctrine that original entries made by a witness are admissible as auxiliary to his evidence, only when he is unable to distinctly recollect the fact without the aid of it. This proposition seems well settled in this State by a current of authority for the last fifty years, which now requires-adherence to it, unless it may be seen that it works unjustly upon the rights of the parties. The rule which renders such entries admissible rests upon the principle of necessity for the reception of secondary evidence, and is not applicable where the witness has a distinct recollection of the essential facts to which they relate. The primary common law proof is there furnished, and the necessity for evidence of the lesser degree does not arise, and this right so qualified to introduce such secondary evidence is the better rule in view of the opportunity, which otherwise might exist, to1 super-add a written memorandum to the evidence of a witness, which, it can not be said, would not sometimes be improperly made available to strengthen his testimony with a court or jury, and such may be within reasonable apprehension until the moral infirmity of human nature becomes exceptionally less than it yet has. This reason for the rule so limited has also been in the minds of the courts in deciding the cases declaring it (Meacham v. Pell, 51 Barb. 65-68 ; Driggs v. Smith, 4 J.&S. 283; Russell v. Hudson River R. R. Co., 17 N. Y. 134).

In holding, as we do, that entries made by a witness are-not admissible unless it appear that he does not recollect the occurrence, to which they relate, independently of them,, we but reaffirm what may be deemed the rule already quite well established in that respect.

In the present case it not only did not so appear, but the evidence of the defendant fairly indicated that his recollection was distinct of the facts in issue to which his memoranda referred.

The ruling which permitted the entries to be read in evidence therefore was error, unless they may, as contended by the defendant’s counsel, be treated and admissible as part of the res gestee. It is difficult to see that it does, and we think it does not come within that doctrine. The entries were made by the defendant and were descriptive of the paper endorsed by him. The acts which he then was called upon to do, and did do, were to endorse the checks. The fact of the endorsement by him of his name upon them is-not questioned. The act of making the entries was not illustrative of that of the endorsement, nor did it tend to-characterize it, and it does not come within the rule requisite to permit it to be treated as part of the transaction ( Wharton’s Ev. § 259 ; Nutting v. Page, 4 Gray, (Mass.) 581, 584; Moore v. Meacham, 10 N. Y. 207; Tilson v. Terwilliger, 56 Id. 277).

The case of Bigelow v. Hall, 91 Id. 145, is not applicable-in that respect to the situation presented in this case. There the parties participated in making the entries at the time of the transaction and they had relation to it, while hero the current entries were made by the defendant alone, and all that Eowks appears to have done was to make from time to-time entry of a supposed past act of payment of a previously endorsed check, and that was done before the defendant’s•entry descriptive of the succeeding' one, and with the latter, •entry the party procuring the endorsement had nothing.to to do, nor does it appear that he was then advised of the •entry as made by the defendant (Brown v. Thurber, 58 How. Pr. 95-97).

' The evidence of the person who represented the drawer •of the checks and drew them as her attorney was contradictory of that given by the defendant Madden in every respect •essential to .the issue presented at the trial. It cannot be .seen that the reading to the jury of the memoranda may not have had some influence upon their action on the main question of fact, which they were required to determine.

The alleged alteration was a material one, and the finding that it was made after the defendant’s endorsement and with•out his consent, presumptively required the conclusion that the checks so altered were rendered invalid as against the. endorser, and that such defendant was entitled to a verdict •(Crawford v. West Side Bank, 100 N. Y. 50).

The presumption in such case is that it was so made as to vitiate it, and the burden is with the party seeking to make .an altered instrument the basis of recovery to relieve it from the effect of the unauthorized alteration, which may be done by showing that it was made by a stranger to it (Waring v. Smyth, 2 Barb. Ch. 119 ; Herrick v. Malin, 22 Wend. 388 ; Smith v. McGowan, 3 Barb. 404).

Nothing appears in this case to indicate that any relief in that manner can be had from the effect of the alteration, if the jury find it was made after the endorsement and without the knowledge or consent of the endorser.

No other question presented hereby the plaintiff’s counsel seems to require consideration.

The judgment should be reversed and a new trial granted, •costs to abide the event.

All the judges concurred, except Parees, J., not sitting.  