
    The National Ulster County Bank, App’lt, v. Michael J. Madden, Impleaded, etc., Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed May 8, 1889.)
    
    1. Evidence—Original entries—When admissible—Bills and notes.
    Original memorandum entries, the corrections of which is verified, made by a witness, are not admissible in evidence, unless it appear that he does-not recollect the occurrence to which they relate, independently of them, or unless they can be treated as part of the res gestae.
    
    3. Same—Unauthorized alteration—Burden of proof.
    Where a party alleged the subsequent alteration of certain checks endorsed by him, as a defense to an action brought on the same, Held, that to relieve him from the effect of the unauthorized alteration he must show that it was made after endorsement, by a stranger, and without his knowledge or consent.
    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.
    
      John J. Linson, for app’lt; E. S. Wood, for resp’t.
    
      
       Reversing 4 N. Y. State Rep., 1.
    
   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 Rondout, and payable to the order of the defendant, Madden, and endorsed by the latter. Madden alone defended, and alleged that after the checks were endorsed by him, they were altered in respec.t 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. Ithaca, and Owego 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., 301.

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 facia 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. Marshal, 77 id., 592; Peck v. Valentine, 94 id., 569; Mayor, etc., v. Second Ave. R. R. Co., 102 id., 572-580; 2 N. Y. State Rep., 526; Brown v. Jones, 46 Barb., 400; Meacham v. Pell, 51 id., 65; Kennedy v. O. and S. R. R. Co., 67 id. 170-182.

The general term cited, on this question, Guy v. Mead,. and made the remark, that while that case 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 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, to superadd a written memorandum to the evidence of a witness which it cannot be said might 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 indorsed by him. The acts which he then was called upon to do, and did do, were to indorse the checks. The fact of the indorsement by him of his name upon them is not questioned. The act of making the entries was not illustrative of that of the indorsement, 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, 584; Moore v. Meacham, 10 N. Y., 207; Tilson v. Terwilliger, 56 id., 277.

The case of Bigelow v. Hall, 91 N. Y., 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 here 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 do, nor does it appear that he was then advised of the entry as made by the defendant. Brown v. Thurber, 58 Howard, 95, 97.

The evidence of the person who represented the drawee 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. Ii 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 without 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. Chy., 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 here by the plaintiff’s counsel seems to require consideration.

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

All concur, except Parker, J., not sitting.  