
    Isaac Berg, Resp’t, v. Joseph W. Carroll, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 4, 1891.)
    
    1. Evidence—Secondaby.
    To justify a reversal of a ruling excluding secondary evidence of the alleged contents of a written instrument, the proof of the existence of such instrument, as well as of its loss or destruction, should he so conclusive that it would be error of law not to hold it sufficient.
    2. Same.
    The only evidence as to the existence of the letter in question, alleged to have been written by plaintiffs assignor, was the testimony of the defendant and his bookkeeper, the latter also testifying that it was enclosed in an envelope addressed to said assignor and so placed in the mail, but it was not shown where or by whom it was mailed. Plaintiffs assignor positively denied having written such letter. Held, that the evidence was not so conclusive that it could be said that the court erred in refusing to admit proof of the contents of the letter.
    Appeal from a judgment of the district court for the fifth judicial district, in favor of the plaintiff, entered upon the verdict of a jury, in an action to recover damages sustained by plaintiff’s assignor by reason of defendant's breach of a contract for his employment
    
      Samuel D. Levy, for resp’t; William H. Shepard, for app’lt.
   Bischoff, J.

Only one of the grounds urged for reversal of the judgment appealed from is of sufficient importance to merit discussion, that relating to the exclusion of secondary evidence of the letter alleged to have been written and sent by plaintiff’s assignor to the defendant, on July 23, 1890, and to have been returned by the defendant. This, upon examination, proves of no avail to appellant.

It was not attempted to show, or was it even claimed, that the alleged letter was at any time in the possession or control of the plaintiff. The service of a notice to produce it upon him was therefore wholly nugatory and without effect, and assuming that the denial of plaintiff’s assignor while examined as a witness for the plaintiff that he ever wrote such a letter obviated the need of serving him with a subpoena duces tecum to cause its production on the trial, it still remained for the defendant to establish the existence of the letter, its subsequent loss or destruction and his inability to produce it by evidence so convincing in its character that its rejection by the trial judge constituted legal error.

These matters presented preliminary questions of fact to be determined by the trial judge before receiving or excluding secondary evidence of the contents of the alleged letter. The judge presiding at the trial has the advantage of hearing and seeing the witnesses, and their demeanor while under examination may largely influence him in attaching a greater or lesser degree of credibility to their respective statements than otherwise would be the case, and an appellate court should not for that reason disturb his ruling when founded exclusively upon the conflicting statements of witnesses. Mason v. Libbey, 90 N. Y., 683. To justify a reversal of the ruling of the trial judge excluding secondary evidence of the alleged contents of a written instrument it has been held that the proof of its loss or destruction should be, so conclusive that it would be error of law not to hold it sufficient. Kearney v. Mayor, 92 N.Y., 617, 621. This must of necessity apply with equal force to the evidence relied upon to prove that the instrument alleged to have been lost or-destroyed did at one time exist, for that which never existed cannot be lost or destroyed. Taylor on Evidence, § 429; Wood’s Practice Evidence, § 8; Nichols v. Kingdom I. O. Co., 56 N. Y., 618.

Upon the trial of this action only two witnesses testified to the receipt on July 23, 1890, by the defendant of a letter addressed to him and in the handwriting of plaintiff's assignor, Cronin, the defendant himself and Quinn, his bookkeeper. The farmer’s statement could have been discredited as that of a party in interest though wholly unchallenged, Kearney v. The Mayor, etc., 92 N. Y., 621, and cases cited; and the refutation of the latter’s testimony is found in Cronin’s denial that he ever wrote such a letter. Here then was a question of veracity between these two witnesses, which the trial judge solved in favor of Cronin, and it is impossible for us to say that he erred.

If it is urged by the appellant that his testimony and that of his bookkeeper were corroborated by the testimony of other witnesses for the defense to the effect that on the morning of July 23,1890, they heard Cronin say to the defendant that his letter of resignation was in the mail, we answer that testimony as to alleged oral admissions of facts in dispute, particularly so when the witnesses are confessedly stating but the fragment of a conversation, is evidence of such inferior quality that error in law should not be predicated upon a refusal to credit it in the face of positive denials of the fact alleged to have been admitted by the party charged with the admission. Greenleaf on Evidence, §§ 199, 200.

But assuming that the existence of the disputed letter was established by evidence of such a nature as to command credit, it still remained with the defendant to prove its loss or destruction, and his inability to produce it in consequence thereof, by evidence so conclusive as to repel eveiy inference that it was fraudulently destroyed or intentionally withheld. Wood’s Practice Evidence, § 8 ; Renner v. Bank of Columbia, 9 Wheat. (U. S.), 581. On this point also the defendant relied exclusively upon his own testimony and that of Quinn. These witnesses said that they had seen the letter, that Quinn, at the direction of defendant, endorsed a statement thereon to the effect that further communications from Cronin were unwelcome, that it was thereupon enclosed in an envelope addressed to Cronin and thus deposited in the mail. The person by whom the letter was mailed and the place where it was mailed were, however, not stated. No other attempt was made to explain the defendant’s inability to produce the letter. His own testimony was subject to discredit as that of an interested party, while Quinn declined to be positive in his statements, and a careful reading of his testimony shows that his statement that Cronin’s alleged letter was returned to him by mail was not made upon his personal knowledge of that fact The evidence was, therefore, wholly destitute of the character required.

The judgment appealed from must be affirmed, with costs.

Bookstayer, J., concurs.  