
    ELIZA A. THOMAS, as Executrix, &c., v. MORRIS WOODRUFF, as Executor, &c.
    
      Value, when testimony as to incompetent—Memoranda inadmissible.
    
    Testimony as to value of articles given by a witness whose knowledge is derived solely from the bills therefor, made out by the vendors of the articles receipted, is incompetent. A fortiori, a list of such articles, with values attached, made out by such witness from recollection of the contents of such receipted bills (the articles having been purchased about eleven years before), the bills having been destroyed and two years having elapsed since the witness saw them, is inadmissible either as an extension of the oral testimony of the witness or otherwise.
    Before Sedgwick, Oh. J., and Freedman, J.
    
      Decided, May 6, 1886.
    Exceptions ordered to be heard at general term in the first instance.
    
      The facts sufficiently appear in the opinion.
    
      Cochran & Clark, attorneys, and W. Bourke Cochran, of counsel for plaintiff,
    on the questions considered in the opinion, argued :—There was sufficient proof of the value to justify the verdict. The value of an article which has no market value may be ascertained by reference to the probabilities of the case, founded on proof of the facts which, in ordinary transactions of business, would affect the mind of a dealer in similar articles in determining the price to be asked or given, and the cost of the article to the party claiming its value, bears upon this question (Strum v. Williams, 38 Super. Ct. 325). In an action for trover and conversion, it is proper to allow evidence to go to the jury showing what the converted articles' cost (Wells v. Kelsey, 37 N. Y. 143 ; Campbell v. Woodworth, 20 Ib. 499 ; Beach v. Raritan & Delaware Bay R. R. Co., 37 Ib. 457 ; Gill v. McNamee, 42 Id. 44 ; Gunn v. Borghart, 47 Super. Ct. 371). The testimony given by the plaintiff was the best evidence that she could procure under the circumstances of the case, and such evidence has been upheld and approved in Jones v. Morgan (24 Hun, 373). The bills or other memoranda which passed between the parties to the purchase at the time of the sale are part of the res gestee of the purchase, and were, therefore, competent evidence to go to the jury (Driggs v. Bliss, 3 Week. Dig. 435 ; Crook v. Harper, 8 Daly, 53 ; Howe v. Brundage, 1 T. & C. 429).
    
      Anderson & Howland, attorneys, and Henry E. How-land, of counsel for defendant,
    on the questions considered in the opinion, argued: argued: I. Plaintiff had no personal knowledge of the value of the articles!
    II. The list was not made at or near the time of the transaction.
    III. The plaintiff’s list of furniture lacks the two conditions which are indispensable to make it admissible as a memorandum ; that it should have been made at or near the time of the transaction, and by a person having knowledge of the facts noted in it. In all cases of the admission of such memoranda it will be found, that the existence of these essential conditions has been shown or assumed (Howard v. McDonough, 77 N. Y. 592; Eberhard v. Schuster, 10 Abb. N. C. 374; 1 Greenleaf Ev. § 438; Maxwell v. Wilkinson, 113 U. S. 658; Chaffee v. U. S., 18 Wall. 541; Stuart v. Binnes, 7 Bosw. 195).
   Per Curiam.

This action was brought by the plaintiff as executrix of the last will and testament of Griffith Thomas, her deceased husband, for an alleged conversion by the sheriff of personal property belonging to her husband’s estate. The present defendant is the executor of a deceased indemnitor of the sheriff. The property in question which consisted of household furniture, &c., was seized by the sheriff and sold on executions to satisfy individual judgments against the plaintiff. The jury having found for the plaintiff, the exceptions taken by the defendant were ordered to be heard at general term in the first instance.

If it were necessary to determine whether under the allegations of the answer proof of a devastavit was admissible at the trial against plaintiffs’ objection, the determination of the question would be attended by difficulties. But we do not feel called upon to make the determination at the present time, because there are some exceptions upon another point which are fatal to the verdict under all circumstances.

The plaintiff was allowed to testify from a long list of articles, with values set opposite, which she alleged to be a statement of the articles sold by the sheriff. It appeared from her own testimony that this list was made up by her more than two years after the articles were sold by the sheriff, and more than eleven years after they had been bought; that she herself had not assisted in the purchase ; that the purchasing had been done by her husband ; that, while he lived, he kept all the bills and receipts for said articles at his office ; that after his death the bills and receipts were brought to her; that at that time nine years had elapsed since the purchase of the goods ; that immediately after the sheriff’s sale the bills and receipts were sent to Morrell’s warehouse, where they were subsequently burned up ; that she did not see them from the time they were so sent to the time they were burned ; that about two years after they had been so sent, and two years after the sheriff’s sale, she made up the list at her present residence for the purposes of this suit; and that, in making it up, she depended upon her memory.

It thus affirmatively appeared from her own testimony that she never had any knowledge whatever of the value of these articles, and that her entire testimony as to such value was hearsay. It therefore was clearly incompetent. But the learned judge who presided at the trial, admitted her testimony as to such value, admitted the list itself as an extension of her testimony, and denied defendant’s motion to strike it out, to all of which rulings proper exceptions were taken.

As it is apparent from the whole case that these erroneous rulings must have greatly prejudiced defendant’s position, the exceptions taken by the defendant should be sustained, the verdict set aside, and anew trial ordered with costs to the defendant to abide the event.  