Brewster v. Doane

2 Hill & Den. 537

Opinion

By the Court,

Bronson, J.

The rule is, that entries and memoranda made in the usual course of business, by nota ries, clerks and other persons, may be received in • evidence after the death of the person who made them. (Halliday v. Martinet, 20 John. 168; Butler v. Wright, 2 Wend. 369; Hart v. Wilson, id. 513; Nichols v. Goldsmith, 7 id. 160; Cowen & Hill’s Notes to Phil. Ev. 674—676.) But if the person who made the enti-y be still living, though out of the state, he must be called, or examined on commission—otherwise his entry or memorandum cannot be received. (Wilbur v. Selden, 6 Cowen, 162; Merrill v. Ithaca & Owego R, R. Co., 16 Wend. 595.) Entries and memoranda made by deceased persons in the usual course, of business, though not the most satisfactory kind of evidence, are received from the necessity of the case; and the evidence is not admissible where that necessity does not exist.

Motion granted.

Footnotes

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(a)

See Bank af Monroe v. Culver and others, ante, p. 531. -