
    Third Appellate Department,
    January Term, 1904.
    Reported. 90 App. Div. 538.
    Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, Appellant, v. Robert F. Moncrief and Others, Respondents.
    Evidence—Admissibility of slips from a cash register to prove that sales were not made—They are only admissible when the witness cannot recollect the facts without their aid.
    In an action in which the issue involved is whether the defendant, a merchant, made certain sales on certain specified days, slips taken from the cash register used in the merchant’s store, which automatically recorded all moneys placed therein, are inadmissible to prove the sales in question were not made (even though the merchant testifies that he correctly entered in the cash register the proceeds of all sales made by him on the days mentioned) where the merchant claims to have a clear, positive and distinct recollection as to the occurrences in his store on the days in Question and testifies that the alleged sales were not made.
    The slips from the cash register are not hooks of account, hut memoranda made by a party in his own interest, and are, therefore, only admissible as auxiliary to the party’s evidence when he is unable to distinctly recollect the facts without their aid.
    Appeal by the plaintiff, Patrick’ W. Cullinan, as State Commissioner of Excise of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 20th day of March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of April, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      8. B. Mead and Albert 0. Briggs, for the appellant.
    
      Lewis L. Griffith, for the respondents Moncrief & Francis.
   Chase, J.

The defendants Moncrief & Francis are druggists, and for more than seventeen years have been engaged in a retail drug business at No. 77 Congress street, Troy. They duly made application for a liquor tax certificate, and on July 2, 1901, obtained a certificate to traffic in liquors under subdivision 3 of section 11 of the Liquor Tax Law (Laws of 1896, chap. 112, am amd. by Laws of 1897, chap. 312).

A bond was given by them conditioned, among other things, that they would not violate any of the provisions of said law. The defendant the Fidelity and Deposit Company of Maryland was the surety on said bond. The plaintiff claims that the condition of said bond was violated on the 22d and 24th days of January,, 1902, and this action is brought to recover the penalty of said bond. On the trial of the action one F., who is a special agent of the excise department, testified that on said twenty-fourth day of January, at twelve-thirty p. m., he purchased of the defendant Moncrief, at said place, a half pint of brandy without the written prescription of a regularly licensed physician, and paid him 'seventy-five cents therefor; and three other special agents of said department testified that they were present at said sale, and that the sale was made as testified by said F. The said witnesses for the plaintiff did not see Francis in said store January twenty-fourth.

Moncrief denied that he sold F. any brandy. Francis testified that the particular shape of bottle in which F. testified that the brandy was delivered to him had not for several years been used in said store. Moncrief also testified that he was not in the store at twelve-thirty p. m. January twenty-fourth, and that his reason for so testifying was that he invariably left the store for his dinner at or prior to twelve o’clock, and that he did not return until one or after one o’clock. He was cross-examined in relation to the time when he left the store, and testified: " I have a cash system by which I tell whether I was in the store or not; ‘A’ is my letter; anything charged that day, and ‘A’ is opposite it, is me; if it is ‘ B ’ it is my partner; those entries were made in the cash book; the cash book is in the store; I didn’t bring it because 1 wasn’t told to; I will bring it after dinner if the court says so; the cash book would not show if any entries were made between the hours of twelve and one.”

After an intermission the defendant Francis was sworn and testified that they used a cash register in January, 1902, and, continuing, testified: “ We press the amount of their purchase and press the number of the clerk and turn the crank and it registers on a detailed slip inside; at the end of the day we take them off and put on a fresh one, and we have the record that goes on in the store all day long; these sales are distinguished by each having a letter; Mr. Moncrief is ‘A’ and I am ‘ B; ’ we press ‘A’ for Moncrief and then the amount purchased and turn a crank and it prints a detailed slip inside; we file the slips used, put them in an envelope and date them and put them away; I keep account of that; I do it in the morning the first thing; * * when a customer buys more than one article we put down the total amount of the purchase.”

He further testified: “ The machine was in good working order and registered correctly; this machine has been used six years and continues to account correctly; we had no clerk in our store at this time; * * we enter on the cash register a charge made; we make every transaction that goes in the store a record of on that slip; it goes through the cash register.”

He also testified: “ We keep a cash book; I 'have not compared the cash book with these slips; I simply brought them because the cash book and they will agree; it would take a short time to get the cash book here; I will not send over and get it because I think these slips are enough; that is the only reason I won’t do it; I think that is evidence enough; my counsel did not tell me to bring the cash book.”

The witness F. had also testified that he purchased a half pint of brandy of Moncrief in said store on January twenty-second. The entries in the cash register are made on narrow pieces of paper called slips. The slips from the cash register which had been indorsed January twenty-second and January twenty-fourth were offered in evidence, and the plaintiff objected to their being received in evidence on the ground that they were immaterial, incompetent and no proof of anything m the case. The objections were overruled and the plaintiff was given an exception. The witness F. testified that at the time he purchased the brandy he 'also purchased another article, the price of which was twenty-one cents, and that he paid to Moncrief for the brandy and the article so purchased the sum of ninety-six cents. The slip indorsed January twenty-fourth does not contain an item of ninety-six cents. This slip was used before the jury as proof that the plaintiff’s witnesses were mistaken or untruthful in saying that F. paid Moncrief ninety-six cents on said day in January. The only claim made by the plaintiff is that the brandy was sold to F. by Moncrief in the absence of Francis. There is not a word of testimony by Moncrief in any way relating to a cash register unless it is in that part of his testimony hereinbefore quoted. He did not testify that he entered in the cash register the proceeds of any or all sales made by him on the days mentioned, neither did he testify, nor is there any evidence, that the cash on hand at the close of the day balanced with the total of the items on the slip in the cash register. There is a total failure of evidence to establish the correctness of the items on the slip so far as the transaction in question is concerned.

We are also of the opinion that the slips from the cash register should not have been received in evidence even if Moncrief had testified that he correctly entered in the cash register the proceeds of all sales made by him on the days mentioned. These slips from the cash register are not books of account but memoranda made by a party in his own interest. Moncrief did not require the memoranda to aid his recollection. The memoranda were not offered or received in evidence while Moncrief was giving his testimony. They were received at a subsequent session of the court as independent affirmative evidence in favor of the defendants. Moncrief claimed to have a clear, positive and distinct recollection as to the occurrences in his store on the days in question and he testified that F. did not purchase brandy there as alleged.

The rule in regard to the admission of original entries as evidence is stated in National Ulster County Bank v. Madden (114 N. Y. 280) as follows: “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 then 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.”

The court in People v. McLaughlin (150 N. Y. 365) say: "An original entry or a memorandum made by a witness at the time of a transaction is admissible in evidence as auxiliary to his testimony only when without its aid he is unable to distinctly recollect the fact to which it relates. The evidence is admitted only as a matter of necessity. Where the witness has a distinct recollection of the essential facts to which the entry relates so that primary common-law proof may be furnished, the necessity for secondary evidence does not arise and it is incompetent.”

The receipt of such slips as evidence was error for which the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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