Levy v. Fidelity & Deposit Co.

87 N.Y.S. 487

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 24, 1904
• Status: Published

Opinion

FREEDMAN, P. J.

The plaintiff, as assignee of a judgment of the City Court in favor of one Marks Levy against George W. Klune, et al., brought this action upon an undertaking issued in that action by the Eidelity & Deposit Company of Maryland, conditioned for the payment of any judgment which the plaintiff in that action might obtain. The defendant’s answer put the plaintiff upon strict proof of his case. The issues herein were tried by a justice of the City Court without a jury. The defendant offered no evidence, and the case was submitted to said justice for decision upon the proofs adduced by the plaintiff.

Assuming that such proofs, if properly admitted sufficiently support the judgment rendered by said justice in favor of the plaintiff, the exceptions taken by the defendant to the admission of evidence, and to the findings of fact and conclusions of law of the justice, nevertheless raise the question whether a sufficient foundation was laid for the introduction of much of the documentary evidence submitted by the plaintiff. An order made by another justice awarding motion costs, an execution issued thereon, and the sheriff’s return indorsed thereon, records of the Municipal Court, and the judgment of the City Court in Levy v. Klune, or, more correctly speaking, papers purporting to be such documents, were received in evidence against defendant’s objection and exception, with no other proof of identification than the word of plaintiff’s counsel that they were the originals. This was not sufficient. True, a court may always take cognizance of its own records, and such records, when properly identified or authenticated, are presumptive evidence of their contents. But there must be identification that they are original records, and that they were taken from the files of the court. In Chase’s Edition of Stephen’s Digest of the Law of Evidence (article 74) the rule is stated as follows : “The contents of any public document whatever may be proved by producing the document itself for inspection from proper custody, and identifying it as being what it professes to be.” And in section 485 of Redfield’s Edition of Greenleaf on Evidence it is said: “But they must be accompanied by proof that they come from the proper repository.” Upon offering a public record in evidence, it is usual to place the clerk or officer having the custody thereof upon the stand to identify the record as the original thereof taken from the files of his office, and it is then, and only then, that the court can take cognizance of it, unless the preliminary proof was waived. In the case at bar there was no waiver, but an insistence upon strict proof, and, there being a defect of proof as pointed out, there must be a new trial. The point is available to the defendant upon the exception taken under the decisions of Halpin v. Phenix Ins. Co., 118 N. Y. 165, 23 N. E. 482, and Slattery v. Schwannecke, 118 N. Y. 543, 547, 23 N. E. 922.

The defendant also appealed from an order of the City Court dated January 15, 1904. The defendant'having on November 30, 1903, obtained ex parte an order extending its time to serve a case on appeal from the judgment 20 days from December 5, 1903, although by order of the court it had previously had 30 days for that purpose, á motion was made by the plaintiff to vacate said order, on the ground that it had been procured in violation of rule 32 of the general rules of practice. On that motion an order was entered on December 15, 1903, denying the motion oh conditions to be performed by the defendant. Upon affidavit claiming that' such conditions had not been fully performed, the plaintiff then moved that the order of November 30th be vacated, and defendant’s appeal from the judgment be declared abandoned and dismissed. • Upon this motion the order appealed from was made. The said order denied plaintiff’s motion on condition that $10 costs be paid to plaintiff’s attorney and the appeal argued at the February term of this court, and then concluded, “and in default of thq defendánt to comply with each and both conditions aforesaid, then said motion be in all respects granted, with costs.” The defendant paid the costs imposed, and now asks for a reversal of the order and restitution of the costs paid, on the sole ground that the order was made without jurisdiction, inasmuch as the motion to dismiss the appeal should have been made to the Appellate Term. This claim is untenable. True, a motion to dismiss an appeal must be made to the appellate tribunal. But the court of original jurisdiction has power, under the general rules of practice, to declare a case abandoned. This is an entirely distinct proceeding. So the court below clearly had the power to conditionally vacate, for cause shown, the order of November 30, 1903. But it is a waste of time to attempt to determine with precision the extent of the legal effect which the order would have had if the defendant had declined to accept the conditions imposed. The conditions having been complied with, and the defendant having accepted the benefit of the order, and thus secured a hearing of its appeal from the judgment upon the case as made, settled, and filed, the appeal from the order of January 15, 1904, should be dismissed.

For the reasons stated, the judgment appealed from is reversed, and a new trial ordered, with costs to appellant to abide the event; and defendant’s appeal from the order of January 15, 1904, is dismissed, with costs and disbursements to respondent. All concur.