
    Daniels v. Smith.
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    1. Trial—Objections to Evidence—Waiver.
    After plaintiff had testified, without objection, that he lent money to defendant, giving him an order on C., who owed plaintiff, and that C. paid it, and defendant, and C. in his behalf, had testified that no such order was given or paid, defendant moved to strike out plaintiff’s evidence as secondary, and proving the contents of a writing by paroi. Held, that the motion was properly denied, as, even if the evidence was improper, defendant had waived his right.
    2. Evidence—Lost Instruments—Presumption oe Loss.
    The action not being on the order, hut being to recover money received by defendant by means thereof, and the order having been given 12 years before, paroi evidence of its contents was properly admitted, the order being collateral, and the presumption from lapse of time being that it was lost.
    3. Witness—Memorandum to Refresh Memory—Ambiguities.
    It is proper to allow a witness testifying from a memorandum to explain ambiguous items in it.
    
    Appeal from judgment on report of referee.
    Action by Milo A. Daniels against Joseph W. Smith. Defendant appeals-from a judgment entered in Rensselaer county in favor of plaintiff.
    Argued before Learned, P J., and Landon and Putnam, JJ.
    
      McClellan & Brown, for appellant. B. C. Strait, (Orin Campbell, of counsel,) for respondent.
    
      
       Respecting the use of memoranda by a witness to refresh his memory, see Riordan v. Guggerty, (Iowa,) 39 N. W. Rep. 107, and note; Billingslea v. State, (Ala.) 5 South. Rep. 137, and note.
    
   Putnam, J.

Plaintiff, on the first day’s hearing before the referee, testified that in the year 1873 he let defendant have $150 in money; that defendant borrowed it for three days. He was going to New York, and wanted to-borrow it for three days. He (plaintiff) gave him an order on Mr. Clark, and Mr. Clark let him have it. It was due on plaintiff’s house at that time. Defendant gave him back a check for $60 on account of the loan, a few daysafterwards, and the balance lias not been paid. The defendant denied that he-ever borrowed the money of plaintiff, and, on cross-examination, testified that he did not remember of plaintiff’s giving him an order on Clark. Clark was afterwards sworn, and denied that plaintiff ever gave an order on him to defendant for $150, or that lie ever paid such an order. Defendant after-wards moved to strike out the evidence so given by plaintiff on the first hearing on the ground that it was secondary, and proving the contents of a writing by paroi, which motion was denied by the referee. We are unable to see any error in this ruling of the referee. Conceding that it was improper to prove the contents of the written order by paroi, yet it presumptively appeared on the examination of the plaintiff, on the first day of the trial, that the ordér was in writing; and the defendant, if he wished to object, should have made the objection promptly. Defendant had not only allowed the contents of the order to be proved without objection, but had also, by his witnesses, endeavored to show that no such order was given, and had'made the order the subject of evidence offered by him. But the plaintiff afterwards, by the witness Catherine S. Daniels, proved the contents of the order; to which evidence defendant objected at the time it was received. We think it was no error to receive paroi evidence of the contents of the order. The order was like a check on a bank. The claim of plaintiff was that defendant received $150, and he received it by means of the order on Clark. The action was not on the order, but for the money received. Hence the order was collateral. See Bowen v. Bank, 11 Hun, 226, 228; McFadden v. Kingsbury, 11 Wend. 668, 669. Again, the order had been used 12 years, or over, before the trial. It had answered its purpose; and, in such a case, the presumption of loss from lapse of time arises, and the court could properly receive proof of the contents without proof of the loss. Jackson v. Root, 18 Johns. 60; Chrysler v. Renois, 43 N. Y. 212. See, also, Grover v. Morris, 73 N. Y. 479, 480; Wilkinson v. Gill, 74 N. Y. 68; Roosevelt v. Eckard, 17 Abb. N. C. 60.

The appellant insists that the referee erred in his finding of fact that the plaintiff loaned defendant the sum of $150, inasmuch as, if he did give the order above referred to, the evidence of Clark shows that he (Clark) never paid such an order to Smith, but that he paid all his rent to plaintiff. But plaintiff swears that he gave the order, and that defendant did receive the money, and afterwards paid him, on account of it, $60, and that the balance remained unpaid. Plaintiff is corroborated as to the giving of the order by his wife. This evidence is substantially denied by defendant and Clark. But it appears that defendant was an aged man,—over 77 years old,—and that Clark was testifying, about 12 years after an occurrence, to a matter at the time of no importance to him; that is, to whom he paid the $150,—whether to plaintiff or defendant. The learned and experienced referee had the opportunity of seeing the witnesses severally, and hearing the testimony, and could judge much better than can this appellate.court what weight should attach to the testimony of each. He may have concluded, from the appearance of defendant upon the stand, that his memory had failed, and that he was not entitled to the same credit as a witness as was the plaintiff. He may have believed, from the appearance of the plaintiff and his wife, that they were more intelligent, and entitled to more weight, than the opposing witnesses. It is conceded that the general term may examine questions of fact, where the case has been tried by a referee, and, if satisfied that the findings are not in accordance with the truth, reverse the judgment. Finch v. Parker, 49 N. Y. 8, 9. But it should be a reasonably clear ease that would justify a reversal by the general term on a question of fact. In this case the referee believed the plaintiff’s statements. We are unable to say that he did not come to a correct conclusion.

The objections at folios 122 and 123 were properly overruled. The witness was testifying from a memorandum, and was allowed to explain some ambiguous items in it. It was like asking a witness to explain what he meant by an ambiguous expression.

It was not erroneous for the referee to strike out the testimony of Cushot about; the slabs bought of Bose. Such purchase could not affect the case before the referee.

We think the evidence received at folio 523 (of Lilly) was properly admitted, and not important.

The defendant further insists that the referee erred in his third and tenth findings of fact, and that such findings are each unsupported by and contrary to the evidence given in the case. We have examined the evidence with care, as well as the able brief presented by defendant’s counsel. The testimony of the plaintiff in the case, if believed by the referee, would justify these findings. He testified to the contract, the amount of his labor, and materials for repairs, the value thereof, the amount of soft and hard timber sawed, the amount he had received therefor, the amount of repairs afterwards put on the mill, the amount of money and goods he let defendant have; that nothing had been paid to him; that the rest of the sawing bill had been received by defendant; that defendant told him he had received it, and it was satisfactory. The defendant, as a witness, contradicts the plaintiff. It was a question of veracity between the witnesses, and the referee believed the plaintiff. The evidence is not so clearly with either party that we can determine that the referee erred. The doctrine that should govern us in such a case is so well stated in Roosa v. Smith, 17 Hun, 138, followed in Wheeler v. Miller, 24 Hun, 544, that we can do no better, in answer to the position taken by defendant, than to quote a few sentences of the opinion delivered in that case, stating well-settled principles: “ The referee has seen the parties and their witnesses, and heard their testimony, given before him viva voce. He has estimated their frankness, honesty, intelligence, freedom from bias, and given credit or distrust as he thought, in these respects, the witnesses deserved. He has passed judgment upon their personal appearance, temper, and manners while on the stand; and he has looked at all the reasonable probabilities suggested by his personal contact, so to speak, with the parties and witnesses, and during their examination. From all this, and more, that is imperceptible and intangible upon appeal, the referee has made up his mind where the right and the truth lies, and given judgment accordingly. * * * We have never supposed that a finding of a referee without evidence, or clearly against a preponderance of evidence, was binding upon the general term. But we think it very clear that a general term cannot, in a doubtful case, upon conflicting evidence, like the one under review, assume the place of the referee, and determine, from the mere reading of the evidence, who has told the truth, or is best entitled to credit.” We conclude that the judgment on the report of the referee should be affirmed, with costs. All concur.  