Arms v. Middleton

23 Barb. 571, 1857 N.Y. App. Div. LEXIS 11

• Court: New York Supreme Court
• Decided: March 2, 1857
• Status: Published

Opinion

By the Court, T. R. Strong, J.

This case comes within the rule, that entries made by a third person in thé usual course of professional employment, or of a clerkship, or agency, are, after the death of the persons making them, competent evidence as being part of the res gestee. The cases in support and illustrative of this rule, are very numerous. Many of them will be found collected in 1 Greenl. Ev. »§ 115,116, 117 ; 1 Smith’s Lead. Cases, (Price v. The Earl of Torrington, and íiotes, commencing at p. 139.) Among the cases of this kind in this state, are Merrill v. The Ithaca and Owe-go R. R. Co. (16 Wend. 586;) Sheldon v. Benham, (4 Hill, 129 ;) Brewster v. Doane, (2 id. 537.) In the case last cited, Bronson, J., who delivered the opinion of the court, says: “ The rule is that entries and memoranda made in the usual course of business, by notaries, clerks and other persons, may be received in evidence after the death of the person who made them.” It is not necessary, as appears by several of the cases, that there should be an absolute duty, on doing an act, to make an entry of it, to render the entry admissible after the death of the person making it; it is sufficient that it is a proper case for making an entry of the act, and that such is his usual practice. The case of The Inhabitants of Augusta v. The Inhabitants of Windsor, 19 Maine R. (1 Appleton) 317, is very much like the present one. That was an action for charges incurred on account of a pauper, and upon the trial it became material to ascertain the time when one Linscott had a leg broken; after proof that a certain physician in regular practice in 1820 and 1821, attended and set the leg, and that he died in 1839, a day book of the physician, in his handwriting, containing two charges against Linscott, one dated September 28, and the other September 29, 1821, for reducing a fracture in his leg, and for medical attendance, were held to be admissible evidence. In the present case it was proved the physician attended the birth of Isaac L. Middleton, whose age was the subject of inquiry; that he was in practice from a period many years prior to the birth to many years afterwards; that he kept a register of all his cases of births, the aggregate number of which, in about 40 years, was 990; and that upon this register were entries of the birth of Middleton, and subsequently of a brother and a sister, which are the entries in question. I am satisfied the entries were •properly received.

[Monroe General Term, March 2, 1857.

It is made a point, that numerous births, embracing a period of several months, appeared by the book to have been entered at one time, and that in many instances the entries did not succeed each other in the order of time; but the case does not contain a copy of the book, or such a description of it that the court can see this is so; hence the point cannot be regarded.

The order appealed from, denying a new trial, must be affirmed with costs.

T. R. Strong, Welles and Smith, Justices.]