
    SETH DRIGGS, Plaintiff and Respondent, v. SILAS C. SMITH, Defendant and Appellant.
    In the case at bar, the testimony as to the amount of money loaned was conflicting. After the plaintiff had testified as to the amount, his counsel produced a paper and handed it to the plaintiff then on the witness stand, and requested him to examine it and state what it was, and thereupon plaintiff made the following statement:
    “ About a week after loan was made I called on Mr. Smith, the defendant, and asked the exact amount of money received from him, as I had no memorandum of it; he told me §1,887.68 as the amount paid by him to Mitchell, and §195.65 paid in money to me; I wrote it down on this piece of paper on his desk, and that was all the money received by me.”
    The contents of the paper were as follows :
    “January 7, 1871.
    “ Cash from Silas C. Smith by Mrs. De Reeve, §195.65 ; two notes of §250 “ each, payable in three and six months, for the interest on $1,887.68 for ‘ six months.”
    Paper offered in evidence on behalf of plaintiff. Objected to by defendant’s counsel as irrelevant and incompetent, it not appearing that witness’s recollection is not clear and distinct; but, on the other hand, it appearing that witness’s recollection is clear and distinct, he having testified in detail. Objection overruled, and paper admitted, and exception duly taken to the admission of the exhibit. And on appeal defendant rested his entire case.
    Before Freedman, Curtis, and Vah Vorst, JJ.
    
      Decided, June 28, 1873.
    
      Held, That the admission of the memorandum or paper was error, and that it was inadmissible under the rule, as established by the several decisions cited and reviewed by the court. (See opinion of Freedman, J.) •
    The rule as laid down by Selden, J., in Russell v. H. R. R. Co. (17 N. Y. 134) approved by this court, and restated as follows :
    “ A witness who says that after refreshing his memory by a written memorandum made by himself at or about the time of the occurrence—he cannot recollect, the facts, but that he is confident that he knew the memorandum to be correct when it was made—is not required to swear to the facts in positive terms, but the memorandum itself is received in connection with and as auxiliary to the oral testimony.” At the same time, however, it was held, with the concurrence of all the judges, that “ it is an indispensable preliminary to the introduction of such a memorandum in evidence, that it should appear that the witness is unable, with the aid of the memorandum, to speak from memory as to the facts. It is only as auxiliary to, and not as a substitute for, the oral testimony of the witness, that the writing is admissible. It is the duty of the court, in all such cases,, to see, before receiving the memorandum in evidence, that it was made at or about the time of the transaction to which it relates, that its accuracy is duly certified by the oath of the witness, and that there is a necessity for its introduction, on account of the inability of the witness to recollect the facts.” And as it appeared that the witness had a distinct recollection of all the facts, independently of the memorandum, the latter was held tovhave been improperly admitted, and the judgment was for that reason reversed and a new trial ordered.”
    Appeal from judgment entered upon the report of a referee.
    The action was brought to recover the sum of $835.30, with interest, under the following circumstances :
    On the 7th of July, 1870, the plaintiff borrowed of the defendant, at the city of New York, $2,082.73 for the term of six months, and agreed to pay the defendant as interest for the said period the sum of $500. To secure the repayment of said money so loaned, and said interest, the plaintiff executed as for said interest two promissory notes, each for the sum of two hundred and fifty dollars, and each payable to the order of Fannie T. De ¡Reeve, one of them payable in three months, and the other in six months, each bearing lawful interest from the date thereof, July 7th, 1870, which notes, after endorsement thereof by the said payee thereof, were delivered by plaintiff to said defendant, and that plaintiff also executed and delivered to said defendant a chattel mortgage wherein the said Fannie T. De Reeve joined, on the furniture in the house known as Wo. 74 University place, owned by plaintiff, and leased to said Fannie T. De Reeve, to secure the repayment of said principal sum so borrowed, and said usurious interest, and also at the same time as additional security for the same caused to be assigned to defendant a chattel mortgage held by John W. Mitchell, of said city, executed by said plaintiff and said De Reeve, on the same property in part described in the first-mentioned chattel mortgage, and also delivered to said defendant, as additional security for said sum so borrowed, and said interest, ten bonds with coupons attached of The Portage Lake and Lake Superior Ship Canal Company, issued July 1st, 1865.
    Shortly after the maturity of the loan, plaintiff made a tender which was more than sufficient to cover the principal sum borrowed with lawful interest thereon. Defendant refused to accept it, and plaintiff finally, to wit on the 21st of January, 1871, paid under protest the sum of $2,996.58, which sum included the principal sum borrowed, $2,082.73, the sum of $500 for interest, and the further sum of $400.73, which last-named amount the defendant extorted under a threat to foreclose the mortgages.
    Defendant denied that there was any agreement to pay usury, and alleged that he procured for and loaned to plaintiff, on and before July 7,1870, sums amounting to $2,496.58, and that the mortgages aforesaid were taken to secure said sum and the payment of certain services which he undertook to perform for plaintiff.
    He also claimed that said sum of $2,496.58, with interest, and the value of services performed, amounted, on January 21, 1871, to more than $2,996.58, but that on the tender of said amount, being the amount of the mortgages, he cancelled the same.
    The referee found for the plaintiff", and gave judgment for the amount claimed and interest, and the defendant appealed.
    
      Peabody & Baker, attorneys, and Fisher A. Baker, of counsel for appellant.
    
      T. C. Campbell, for respondent.
   By the Court.—Freedman, J.

The testimony given by the parties on the trial as to the amount actually loaned was conflicting. Plaintiff testified that on a certain day in the month of July, 1870, he borrowed from the defendant $1,887.68, which he received through Mitchell, and $195.67, which he received from the hands of the defendant. His counsel then produced a paper, and requested plaintiff to look at it and to state what it was. Plaintiff in pursuance of such request made the following statement:

“About a week after the loan was made I called on Mr. Smith, the defendant, and asked the exact amount of money received from him, as I had no memorandum of it; he told me $1,887.68 as the amount paid by him to Mitchell, and $195.65 paid in money to me. I wrote it down on this piece of paper on his desk, and that was all the money received by me.”

The contents of the paper were as follows :

“Cash from Silas C. Smith, by Mrs. De Peeve, $195.65 ; Two notes, of $250 each, payable in three and six months, for the interest on $1,887.68 for six months.”

The paper was thereupon offered in evidence. Defendant’s counsel objected to it as irrelevant and incompetent, for the reason that it did not appear that witness’ recollection was not clear and distinct, but that, he having testified in detail, the contrary appeared.

The objection was overruled and the paper admitted. Defendant excepted, and on appeal rested his entire case upon such exception.

As shown in Guy v. Mead (22 N. Y. 462), the doctrine of the courts of this State originally was, that such a paper could not be given in evidence as an independent piece of testimony. The rule was that it might be referred to by a witness to refresh his memory, but that he must then swear to the truth of the facts, or his statement would not be evidence.

Subsequently it was held that original entries might be read in evidence, though the witness had forgotten the fact attested by them. But the rule was restricted to entries made by the witness in the course of his business.

In Halsey v. Sinsebaugh (15 N. Y. 485), the rule was still further relaxed, and the principles first stated in Cowen and Hill’s notes to Phillip’s Evidence (note 528, to p. 290), “ that an original memorandum, made by ‘ ‘the witness presently after the facts noted in it trans-1 ‘ pired, and proved by the same witness at the trial, may - “ be read by him, and his evidence to the jury of the “ facts contained in the memorandum, although the “ witness may have totally forgotten such facts at the “time of the trial,” was adopted without reservation and laid down as the law of this State.

In Russell v. The Hudson River Railroad Company (17 N. Y. 134), Seeder, J., who had delivered the opinion of the court in Halsey v. Sinsebaugh, restated the rule to be that:

“ A witness who says, that after refreshing his mem- “ ory by a written memorandum made by himself at or ‘1 about the time of the occurrence, he cannot recollect “the facts, but that he is confident that he knew the “memorandum to be correct when it was made, is not “required to swear to the facts in positive terms, but “the memorandum itself is received in connection with, “and as auxiliary to, the oral testimony.” At the same time, however, it was held, with the concurrence of all 'the judges, that “it is an indispensable preliminary to the introduction of such a memorandum in evidence, that it should appear that the witness is unable with the aid of the memorandum to speak from memory as to the facts. It is only as auxiliary to, and not as a Substitute for, the oral testimony of the witness, that the writing is admissible. It is the duty of the court in all such cases to see, before receiving the memorandum in evidence, that it was made at or about the time of the transaction to which it relates, that its accuracy is duly certified by the oath of the witness, and that there is a necessity for its introduction on account of the inability of the witness to recollect the facts.” And as it appeared that the witness had a distinct recollection of all the facts, independently of the memorandum, the latter was held to have been improperly admitted, and the judgment was for that reason reversed, and a new trial ordered.

As thus settled, the rule is still in force (Brown v. Jones, 46 Barb. 400 ; Meacham v. Pell, 51 Barb. 65). Hone of the authorities cited by the respondent has worked a change in it. In Guy v. Mead (supra), in which the judgment was reversed on account of the exclusion of the memorandum, the witness had testified that he had no recollection independently of the writing. In Philbin v. Patrick (6 Abb. N. S. 284), and in Lewis v. Ingersoll (1 Keyes 347), the admission of the memorandum was upheld, because the proper foundation had been laid. In Marcly v. Shults (29 N. Y. 346), and in Downs v. N. Y. Central R. R. Co. (47 N. Y. 83), the memorandum was rejected on account of its not being the original. The case of the Townsend Manufacturing Co. v. Foster (51 Barb. 346), appears to have been decided upon the authority of Halsey v. Sinsebaugh (supra), and the point, that a foundation for the introduction of the memorandum must be laid, was not raised at all.

It is clear, therefore, that in the case at bar the memorandum was improperly admitted. It was incompetent evidence, and as it fully appears that it did not relate to a comparatively or relatively unimportant branch of the case, but to a highly material point, in fact to the point upon which the case turned, and in respect to which it tended to corroborate plaintiff’s version, the error cannot be disregarded (Worrall v. Parmelee, 1 N. Y. 519 ; Williams v. Fitch, 18 N. Y. 546).

The decision in Murray v. Smith (1 Duer, 412, as shown in Wilmot v. Richardson, 6 Duer. 328, 339), was reversed by the Court of Appeals solely on the ground that the admission of incompetent evidence bearing upon the issues, and duly excepted to, constitutes error, which entitles the party excepting to a new trial. That the question has been presented by a bill of exceptions, instead of a full case, is no ground for a departure from, but rather a reason for adherence to, the last-named rule, because without the whole evidence before us it is impossible to say that the admission of the memorandum did not prejudice the defendant in the estimation of the referee.

The judgment must be reversed, the order of reference vacated, and a new trial ordered, with costs to appellant to abide the event.

Curtis and Yah Yorst, JJ., concurred.  