Collins v. Carlin

106 A.D. 204, 94 N.Y.S. 317

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1905
• Status: Published

Opinion

Jenks, J.:

I think that the admission of the plaintiffs’ time book was error. The plaintiffs sued for $5,003 upon a contract for pumping at $10 per diem. The number of days’ work done was an issue, and finally was the sole issue submitted to the jury. One of the plaintiffs testified that they worked 500y\- days. At the close of his recross-examination he was permitted to read their time book in evidence. Some time before, when cross-questioned as to whether he knew of any work done on a specified day, he answered: “ I have a time book which will give me the exact date and hours and so forth, that I checked my bills from as I sent them in week by week to Mi. Carlin. ' I cannot tell now, sitting on the stand, whether I pumped on March 25th so many hours. It is all in my book. I don’t carry those0things for two or three years. I have too much todo.” And later, during the colloquy, inciden tal to the offer of the time book, the court said : “ As he said, as far as hi"s verbal testimony is concerned, he could only answer from this book. He has told you that.” Before the admission of the book the witness testified that their time books ” were made up from time “ given in ” by timekeepers, and that the particular book thereafter admitted Was made up by the timekeeper under his supervision from the bookkeeper’s time book, who got “ his time * * * from the men, himself.” He also testified that the men reported to himself from time to time, sometimes verbally and sometimes he went “ to the job ” and asked “ how long they have been working, keep track of them.” Under such conditions the rule requires not only testimony from the maker of the entries that they conform to the reports made by the timekeepers or the workers, but also testimony from the timekeepers, or the workers that their reports were true. When the maker of the entries can only testify that he acted upon information and wrote in accord with it, it-must be shown that the information conformed to the facts. In- this case even the time books were not admissible without the testimony of the men who kept the time and reported it, or the men who did the work tod reported their hours. (Mayor, etc., of N. Y. v. Second Ave. R. R. Co., 102 N. Y. 572.) The learned counsel for the respondents contends that this book was admissible, because the defendants examined the plaintiff “ directly from the book ” and had “ him literally read its contents into the record.” ' The answer is that the defendants did not seek to establish their case by this writing, but to destroy or to impair the writing as evidence for the plaintiffs, or to impair or limit testimony dependent on it. The witness testified as to the total of the days’ work. It thereafter clearly appeared that he relied for thé details and as to the specific days upon the time books or the time book. After the history of the time books was elicited, the defendants thereupon moved that “all the evidence as to the performance of work which is based upon the entries ” therein be stricken out; their motion was denied, and thereupon they began their re.cross-examination upon the specific entries. That I have correctly described the purpose of the defendants is indicated by the coursemf-the examination, and made plain by the motion thereafter made “ that the testimony of the witness be stricken out on every item excepting as to these items which he says he knows of his own knowledge and belief, the entries being made from his own knowledge, that all other items excepting those be stricken out on the ground that it is hearsay.” Inquiry as to the origin, competency or evidential value of a writing, more or less relied upon by an opponent, however minute, does not thereby make the contents evidence for the opponent.

It is also contended that the time book was admissible because the bookkeeper who actually made the entries is dead. Referring to the bookkeeper, the plaintiff testifies: “ Q. Where does he get his time ? A. From the men himself, and every day I look over -it to see that it is correct. Q. Do the men report to you also % A. They report to me from time to time.”' Death accounts for the absence of the testimony of the bookkeeper, but not for the absence of the testimony of those who told him of the time kept by .them or as filled by them in work. The death of the bookkeeper does not dispense with the requirement- of the testimony of those who reported the facts to him. In Cowen and Hill’s and Edwards’ Notes to Phillips on Evidence (Vol. 1 [5th Am. ed.], p.

*348) it is said: “ But however Lord Torrington’s Case* may have been considered by the English courts, it has generally been treated by our own according to its more obvious principle'; not only as letting in all books of account kept by a deceased clerk, but all other entries or memoranda made in the course of business or duty, by any one who would at the time have been a competent witness to the fact which he registers.” Jones on Evidence (Yol. 2, § 323) states the rule as follows : “It has long been a settled rule of law both in England and in this country that a minute or memorandum in writing, made at the time when the fact it records took place by a person, since deceased, in the ordinary course of his business, corroborated by other circumstances which render it probable that the fact occurred, is admissible in evidence.” . The limitation is expressed in the leading case of Nicholls v. Webb (8 Wheat. 326, 337) where the court, per Story, J., said: “We think it a safe principle, that memorandums made by a person in the ordinary course of his business, of acts or matters which his duty in such business requires him to do for others, in case of his death, are admissible evidence of the acts and matters so done.” In other words, the production of the time book, with the proof that the entries were made by the deceased bookkeeper, would have been sufficient to render the book competent if coupled with the evidence of the timekeepers or the workman, as heretofore indicated.

The time book was not admissible under the well-known doctrine of Vosburgh v. Thayer (12 Johns. 461. See Smith v. Smith, 163 N. Y. 168), because there was no proof of the prerequisites. The further contention as to admissibility is answered by the authority of Mayor, etc., of N. Y. v. Second Ave. R. R. Co. (supra).

I think that the ruling was reversible error. The time book bore directly and cogently upon the sole issue submitted to the jury, and the learned court in its charge commented on this book, described its preparation, told the jury it was in evidence, and then said : “ It is for you to say how far that substantiates his statement, whether it satisfies you as to the correctness of his story or not. I leave it to you to say whether the book is correct; whether his statement- of the time is correct.”.

The judgment must be reversed and a- new trial be-granted, costs' to, abide the event.

, Hirsohberg, P. J., Woodward, Rich and Miller, JJ., concurred.'

Judgment reversed and new trial granted, costs to abide the event.

See Price v. Earl of Torrington (1 Salk. 285; 3 Ld. Raym. 873).— [Rep.