Metropolitan Life Insurance v. Callen

4 N.Y.S. 833, 23 N.Y. St. Rep. 629, 1889 N.Y. Misc. LEXIS 1740

Opinion

Van Hoesen, J.

See 2 Whart. Ev. § 1212, and cases cited. The book (Exhibit 0) which Lane kept, and the accounts rendered by him in the course of his official duty, (Exhibit D,) were both competent evidence against the surety. They were a basis from which the amount of Lane’s indebtedness could be obtained by calculation. They were properly received in evidence. Then Lane swore, on cross-examination, that whatever he had received he had paid over to the plaintiff. The only question in this case is, was the justice warranted in holding this general and sweeping statement sufficient to overcome the written evidence contained in the two exhibits, C and D, and the result of the calculations made upon said exhibits ? If the justice was wrong in accepting Lane’s statement that he has paid over all money that he had collected, then there should be a reargument. But whether there should be a reargument, or not, we cannot stand by the former opinion of the general term which is clearly •erroneous in holding that the Exhibits 0 and D were not evidence against the surety. The cases, as well as section 1212, 2 Whart. Ev., make it plain that these exhibits are admissible against the surety.

Daly, J., concurs.