
    Charles G. S. Reed, Resp’t, v. Henry C. Zimmerman, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed October 24, 1892.)
    
    Evidence—Book pboduced on demand.
    A book produced upon demand does not, upon failure of the party calling for the same to use it, become evidence against hii
    Appeal from judgment in favor of plaintiff.
    
      McMahon & Handley, for app’lt; H Hartman, for resp’t.
   McCarthy, J.

This is an appeal by the defendant from a judgment in an action for money loaned.

The cause came on for trial at trial term of this court, on the 16th day o£ December, 1891, and upon consent of the parties was referred to Ira 0. Miller, Esq., as referee to hear and determine.

The issues were, tried at great length before the referee, who rendered his report directing judgment as demanded in the complaint, and judgment was entered accordingly on May 26, 1892.

In the month of December, 1887, plaintiff, whose ■ business is that of a book-keeper and cashier, entered the employ of the defendant, then engaged in the retail flour business.

Plaintiff was employed upon the books, having almost exclusive charge of the deposits of cash and checks, and of payment by checks.

He assisted also as cash collector and salesman, and, after he had been in plaintiff’s employ about six months, began to negotiate temporary loans for, and to make-such loans personally to the defendant, to ' enable him to meet the financial exigencies of his business, and make payments when .they became due.

About the first of these transactions was in July, 1888, by a check of the plaintiff to the defendant for one thousand and one hundred and seventy-five dollars ($1,175.00). Then followed a long series of loans of this nature continuing down to the time when plaintiff left defendant’s employ. _

These transactions usually consisted in the plaintiff’s depositing^ to defendant’s credit in the West Side Bank his own personal check for whatever sum might be necessary for the defendant’s needs for the day. Against these deposits the defendant drew to meet current demands, andón the following morning gave plaintiff what cash might be on hand, and a check to the order of currency for the balance. These currency checks were cashed by plaintiff, and with the cash received from the defendant deposited in plaintiff’s bank to meet his check of the day previous.

These transactions are variously referred to as accommodation checks, currency checks, check items and check kiting, but both plaintiff and defendant agree that these transactions between them from day to day were balanced and adjusted at once, sometimes by cash, sometimes by check, sometimes by both.

In addition to these temporary loans, if loans they can be called, and altogether outside them, plaintiff loaned defendant three specific sums of money, upon definite terms of credit, as follows:

March 15, 1890................................ $464 00

May 5, 1890.................................. 800 00

June 24, 1890................................. 20 00

Total..................................... $1,284 00

Upon account of these loans plaintiff received payment of the amounts set forth in folios 13 to 15 on page 5, aggregating................................ 756 75

Leaving a balance of............. .......... $527 25

for which suit was brought

The above loans are unquestioned by defendant, and both parties agree that the sums credited on page 5 were paid to plaintiff on or about the dates named.

Defendant, however, claims to have made four other payments on account of these loans, all of which plaintiff denies, and which are set out in defendant’s statement, Exhibit 24.

These alleged payments are as follows:

July 11, 1890, by check......................... $135 00

“ 16, “ “ ............... $259 80

“ “ ............... 140 20

-- 400 00

L O. U. of Mallon.............................. 45 00

Discount on Capdeville notes..................... 25 00

Total............... $605 00

It is claimed by the defendant that if these credits had been allowed him, the plaintiff would be found indebted to the defendant. . The case was fully tried before the referee, and considerable evidence and exhibits presented, and was strongly contested on both sides.

It involves purely a question of fact.

The referee having had the witnesses, who were the principals, before him,was the best qualified to judge and determine their credibility, and how much weight should be given to their evidence.

No matter how inconsistent portions of the evidence may seem, we must consider the whole case.

We think from an examination that there is sufficient evidence to sustain the referee. The exceptions'were properly overruled.

There is no such rule that upon a -party being notified by the adverse party to produce a book or document, and it is produced on such case, that on the failure of the party calling for the same to use it, it becomes evidence against him.

The cases cited by the appellant in my judgment are authorities against him. See Carradine v. Hotchkiss, 120 N. Y., 611; 51 St. Rep., 951, and Smith v. Rentz, 131 N. Y., 174, 175; 42 St. Rep., 879.

For the reasons above stated the judgment should be affirmed., with costs.

Ehrlich, Ch. J., and Vah Wyck, J., concur.  