
    Huff v. Bennett
    
      Memoranda. — -Notes of testimony. — Evidence.
    A witness may refresh his memory hy a memorandum made hy a third person, at the time of the transaction, if he can afterwards swear to the facts, from his own recollection.
    The judge’s notes of the testimony of a witness, taken on a former trial, cannot be read to discredit the witness, if the judge be unable to testify to their correctness, from recollection.
    In an action for a libel on an attorney, evidence on the part of the defendant that the plaintiff s application for admission to the supreme court had been denied, is inadmissible for any purpose.
    Huff v. Bennett, 4 Sandf. 120, affirmed.
    Appeal from the general term of the Superior Court of the city of New York, where a motion for a new trial, made on a bill of exceptions, had been denied, and jndg ment perfected on a verdict in favor of the plaintiff (Reported below, 4 Sandf. 120.)
    This was an action, by the plaintiff, an attorney of the superior court, against Bennett,1 the publisher and editor of the New York Herald, for certain alleged libels upon the plaintiff’s character as an attorney, published in that paper.
    The libels consisted of alleged reports of proceedings before the Recorder of New York, who had discharged two persons committed to prison by another magistrate, on the entry of bail for their appearance; with com: ments thereon, assuming that the recorder acted by the advice of the plaintiff, who was the prisoners’ counsel, with a sketch of the plaintiff’s history. Also, a report of the proceedings in a case before the court of special sessions, with allusions to the plaintiff’s conduct in connection therewith. The defendant justified the publications, on the ground that they were correct reports of public legal proceedings, with fair comments thereon; and that the facts stated in relation to the plaintiff were true.
    On the trial, before Oakley, J., after proof of publication, and in reply to testimony on the part of the defendant, as to the correctness of the published reports, the plaintiff called the recorder as a witness, and having placed *in his hands a copy of the alleged libel- f ^ lous report of the proceedings before him, asked ^ the following question: “Wherein, as you now remember, is that report incorrect?” The defendant’s counsel objected to the question, as incompetent, but the objection was overruled, and an exception taken.
    The defendant then called the Hon. Lewis H. Sandeord, the presiding judge in a former trial of the cause, when the recorder was examined as a witness. He testified, that he took pretty full notes of the testimony on that trial; but could not state from his own recollection what the recorder then testified to; nor could he say, that his notes contained the recorder’s testimony accurately ; he might have omitted things that the witness testified to. The defendant, thereupon, offered the judge’s notes in evidence, which were objected to, the objection sustained, and an exception taken.
    The plaintiff having shown that he was an attorney of the superior court, the defendant offered to prove that the plaintiff had made application for admission to the supreme court, which had been denied. This offer was objected to, and overruled, and the defendant excepted.
    The plaintiff had a verdict for $150 damages; and a motion for a new trial, made on a bill of exceptions, having been denied, and judgment perfected in favor of the plaintiff, the defendant took this appeal.
    
      Sandford, for the appellant.
    
      Huff, respondent, in propriâ personâ.
    
   Jewett, J.

— On the trial several exceptions were taken by the counsel for the defendant to the decision of the judge in respect to the admission and rejection of evi- * 339 1 ^ence some °f *which were not attempted to be -* sustained, on the argument here. I shall, therefore, notice only such as the counsel relied on upon the argument in this court. The first was the exception to decision of the judge, holding that it was admissible for the counsel for the plaintiff, to put into the hands of the witness, Scott, a paper, and to ask him wherein, as he then remembered it, was the report contained therein incorrect. The objection was placed upon the ground that the question was incompetent, but the case does not show the particular ground of the supposed incompetency. On the argument, the ground assumed was, that it called for the testimony of the witness of facts, after having refreshed his memory, by looking at memoranda not made at the time, either by himself, or in his presence. It was insisted, that the rule was, that a witness could only testify to such facts as were within his knowledge, and that his recollection of the facts could only be refreshed by examining memoranda, either made by himself, or in his presence. Although the rule is, that a witness, in general, can testify only to such facts as are within his own knowledge and recollection, yet it is well settled, that he is permitted to assist his memory by the use of any written instrument, memorandum or entry in a book, and it is not necessary that such writing should have been made by the witness himself, or that it should be an original writing, provided, after inspecting it, he can speak to the facts from his own recollection. Doe v. Perkins, 3 T. R. 749; Henry v. Lee, 2 Chit. 124; Lawes v. Read, 2 Lew. Crown Cas. 152; 1 Green. Ev. § 436 ; 1 Phil. Ev. 289; Cow. & Hill’s Notes 750; Lawrence v. Baker, 5 Wend. 301.)

The next exception was to the decision of the judge, excluding the evidence offered to prove that the plaintiff had sued the corporation of the city of New York for crier’s fees. The decision, I think, was correct; the fact offered to be proved was wholly irrelevant. And so was the fact offered to be proved, that the plaintiff, in January 1848, applied for admission to practice as an attorney in the supreme court; and the decision upon the objection to the offer of that evidence was, therefore, right.

*On the trial, the defendant called Judge Sandford as a witness, who testified, that he *- was the presiding judge at a former trial of this cause, that the witness, Scott, was sworn as a witness on that trial, that he took notes of his testimony, on that occasion, but could not recollect what he testified to, except as he referred to his minutes; that he had his minutes, which were pretty full, but he would not say that they contained the testimony of Scott accurately; that he might have omitted things to which he testified. Upon this, the defendant’s counsel offered to read the notes of Judge Sandford, as taken, in evidence; on objection being made, the judge excluded the evidence. I think, the decision was right. The notes of Judge Sandford, to show what the witness Scott testified to on the former occasion, ought not to have been "read in evidence, especially, as he was not able to testify that they contained the testimony of the witness accurately; he did not even testify that he intended to take the testimony accurately, as the witness gave it, or that he believed that he had done so. When a witness has made memoranda in the usual course of business, and whose duty it is to make them, if he cannot verify their accuracy, they cannot be received in evidence before the jury. (Butler v. Benson, 1 Barb. 527, 536, and the cases there cited; Moore v. Pearson, 6 Watts & Serg. 51.)

There was evidence enough to submit the cause to the jury, and the charge of the judge was clearly right. The judgment should be affirmed.

Welles, J.

— The only question upon which I entertained any doubt upon the argument, was, whether the minutes of Judge Sandford, taken, upon a former trial of the action, of what John B. Scott swore to, were not improperly excluded. Scott had been examined as a witness for the plaintiff on the former trial, and had been again examined by the plaintiff, upon the trial in question, and on that occasion, gave evidence in relation to his former testimony, and the object of introducing Judge Sandford’s minutes was to impeach Scott, by * 3411 s^10W^nS a discrepancy *in his evidence on the -* two occasions. Admitting the question to stand upon the principle of proving the testimony of a deceased witness, which may well be doubted, I think, the decision excepted to at the trial was right. Judge Sand-ford, testified, that he presided at the former trial; that Scott was sworn as a witness; that he took notes of the testimony on the trial; that he could not recollect what Scott testified to, except as he referred to his minutes, which he then had with him, and were pretty full, but he would not say that they contained the testimony of Scott accurately; that he may have omitted things which he testified to. In Clark v. Vorce (15 Wend. 193), the rule was extended quite far enough. In that case, the witness called to prove the testimony of the deceased witness (one' Haight), given on a former trial of the cause, testified, that he acted as counsel on the former trial, and took very full and particular minutes of Haight’s testimony that he intended, at the time, to take down the words of Haight, but could not pretend to give his precise words; that he could not swear to Haight’s testimony, except from his minutes, and could not testify that he had taken down every word of his testimony, but intended, at the time, to take down all he regarded material.

That is very different from this case. Judge Sand-ford says, he cannot swear that his minutes contained the testimony of Scott accurately, and that he may have omitted things that he testified to; he does not say he believes his minutes are correct, nor that he intended to take down the words of the witness. No case, I believe, has gone the length of receiving such evidence of the testimony of a deceased witness, and the rule ought not to be relaxed, in a case where the individual whose evidence on the former occasion is sought to be proved is living. I think, the judgment of the superior court should be affirmed.

Judgment affirmed. 
      
       Sturm v. Atlantic Mutual Insurance Co., 6 J. & Sp. 281.
     