Philbin v. Patrick

3 Abb. Ct. App. 605

Opinion

By the Court.

Miller, J.

[After holding that the findings and exceptions could not he reviewed because not inserted in the case, — an objection obviated by section 268 of the Code of Procedure as amended in 1869.]

Independent of the reason stated for the affirmance of the judgment, I think there was no error upon the trial. The objection made to allowing Knight, the plaintiffs’ bookkeeper, to read from the scrap book the list of articles there named, and delivered to the workmen from plaintiffs’ shop, is not well taken. The book was competent evidence, preliminary to proof that materials were furnished by the plaintiffs to the defendant.

The witness testified that the entries were made when the articles were delivered to the carmen, in the course of his business as the bookkeeper of the plaintiffs.

He did not recollect the delivery of the articles, and was only able to state what articles actually were delivered, from having made the charges in the scrap book.

They were made at or about the time of the transactions to which they related, and their accuracy was duly verified.

It also appeared that the witness was unable, -with the aid of the memorandums made by him, to speak from memory as to the facts.

The evidence, therefore, was properly received. The rule is laid down in Halsey v. Sinsebaugh, 15 N. Y. 485, and approved in Russell v. Hudson River R. R. Co., 17 Id. 140. See, also, Guy v. Mead, 22 N. Y. 462; Marcly v. Shults, 29 Id. 345.

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It may be also observed that the fact of the delivery and the use of the articles was fully proved by the evidence subsequently introduced, and if there was any error, it was rendered entirely harmless, and could not affect the result, or work an injury to the defendant. People v. Gonzalez, 35 N. Y. 49, 60. For was there any error in the introduction of the bill of work done and materials furnished by the plaintiffs for the defendant.

Both of them had been furnished to the defendant; and in connection with proof of the correctness of the charges made, and a conversation with the defendant as to one of them, they were properly received as evidence.

The judgment must be affirmed.

All the judges concurred.

Judgment affirmed, with costs.

The point ruled in Marcly v. Shults was, that it is only an original entry made by the witness which may be read in evidence as having been made by him at or near the time when a fact, material to the issue, occurred, he swearing it was made correctly ; a copy, or an entry made by any other person, can only be read when used to refresh the witness’ recollection of the fact to which the enti;y related.

Marcly v. Shults has been followed also in the supreme court, as an authority for admitting original memoranda made by a witness at the time of the transaction. Kennedy v. Crandell, 3 Lans. 1.