Stanfield v. Knickerbocker Trust Co.

73 N.Y. St. Rep. 297

Opinion

WILLIAMS, J.

It seems to us that there was abundant evidence to establish both the co-partnership and the copartnership loan, and that the court was in error in dismissing the complaint upon the merits, even on the evidence admitted on the trial. But more than this, we are of opinion that- the trial court erroneously excluded evidence offered by the plaintiff, and objected to by the defendants, which í-equires a reversal of the judgment.

The witness, Frederick II. Smith testified that, just before the death of deceased, he had a conversation with him about the business, his son, the plaintiff’s husband, was carrying on, and the witness was then asked if, in that conversation, the deceased said anything about his being a parner in the business. The court refused to permit the witness to answer these questions. The plaintiff testified to having made the loans, delivering the money to her husband, and she stated the conversation she had with her husband, in reference to the loans at the time they were made. She further testified that the loans were made to the copartnership, and that a full account of such loans and the payments made thereon was kept in the copartnership books. The witness Wingfield G. Burton was called as a witness, and testified that he was in the employ of the copartnership at the time that the loans were alleged to have been made, and kept the books of account; that, since the death of the deceased, he had made diligent search for the books, and had found some of them in the cellar of the store, among old rubbish, and among them the covers of the books in question, but the insides of these books had been torn out and taken away, and he could not find them. He was then asked to state the contents of the books, what account with plaintiff was kept on the books while he was bookkeeper, what amount of loans from the plaintiff to the copartnership, and what accounts of payments to her thereon were entered in such books, and the amount owing to her as appeared on the books. The court refused to permit this evidence to be given. We think the loss or disappearance of the books was sufficiently shown to entitle the plaintiff to give parol evidence of their contents.

Mr. Donahue was called as a witness, and was asked to state the conversation between himself and deceased with reference to the copartnership; but the court refused to allow him to do so, on the ground that the conversation was privileged. We think that no such privilege was shown.

These are some of the-rulings excluding evidence offered on the part of the plaintiff which seem to us to have been erroneous. We think the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

BARRETT, RUMSEY, and PATTERSON, JJ., concur: VAN BRUNT, P. J., concurs in result.