
    Reed v. Zimmerman.
    (City Court of New York—General Term,
    October, 1892.)
    In an action to recover moneys loaned, the fact of the loans and some repayments was admitted, but defendant claimed to have made certain other payments; this plaintiff denied. Held, that a judgment in plaintiff’s favor would not be disturbed.
    The failure of a party to use a book or document produced upon his notice does not make it evidence against him.
    
      
      McMahon & Haudley, for defendant (appellant).
    
      H. Hartman, for plaintiff (respondent).
   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 sixteenth day of December, 1891, and upon consent of the parties was referred to Ira O. 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 bookkeeper 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). Fols. 4 and 252. 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 % defendant’s credit in the West Side Bank Ms 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, and on 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 accommoda. tion checks, currency checks, check items and check kiting, hut 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. See plaintiff’s testimony, fols. 96, 97, and defendant’s testimony, fols. 204, 259, 260, 261, 262 and 266. 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 (fols. 5, 6 and 7), $464; March 5, 1890 (fols. 8 and 9), $800; June 24, 1890 (fol. 12), $20; total, $1,284. Upon account of these loans plantiff 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. See plaintiff’s testimony, fols. 9, 11, 13, 14, 15, 17, 18, 19, and exhibits A to E, on pp. 2, 3, 4 and 5 ; defendant’s testimony, fols. 164,165,166, 171, 173, 174, and defendant’s exhibits 9 to 15, on pp. 15, 16, 17 and 18; exhibit 22 on p. 56, and exhibit 24, on p. 60. 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, in folio 181, at the top of page 61.

These alleged payments are as follows: July 11, 1890, by check, $135; July 16, 1890, by check, $259.80; $140.20; $400; I. O. U., of Mallon, $45 ; discount on Oapdeville notes, $25; total, $605.

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 to judge and determine their credibility and how much weight should by given to then' evidence. Ho 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 becomes evidence against him. The cases cited by the appellant in my judgment are authorities against him. Carradine v. Hotchkiss, 120 N. Y. 611; Smith v. Rentz, 131 id. 174, 175.

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

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

Judgment affirmed.  