Irving v. Claggett

Daniels, J. The plaintiff’s demand was for services rendered by himself, and by other persons in his employment, as detectives, and for money expended by him, in searching for and securing witnesses to be used in support of a contest made concerning a will, which was heard and tried before the surrogate of the county of Hew York. For himself, he claimed to have become entitled by the result of the contest to the sum of $2,500; and the residue of the charges for services were for detectives in his employment in and about the same business, amounting to the sum of $5,570. It was generally stated by himself in the evidence which he gave upon the trial, and by the witness Wendell, who was examined on behalf of the defendants, that detectives were employed by the plaintiff, and rendered services in discovering and obtaining testimony and witnesses to aid the defendants in their contest. And, to prove the number of days during which these detectives rendered their services, and for which it was claimed the plaintiff was to receive the sum of $10 a day, he produced, and offered to read in evidence, a book in which the entries had been made by himself. These entries are stated to have been first made in another book, which was not produced upon the trial, but which had been lost or disposed of, and was consequently out of the power of the plaintiff. The entries made in that book, he testified, were from slips and reports returned to him by the detectives, and that the book produced by him contained an accurate copy of the entries made in the first book from these slips and reports. The slips themselves were not produced, but they had been lost or destroyed; and no evidence, except of the most general nature, was given on behalf of the plaintiff to prove that the statements contained in the reports and slips were truthful, or that the services for which the charges were made had in fact been rendered. There was this general evidence that he at different times, and also this other witness, had observed the different detectives apparently in the discharge of their duties. But these observations were casual only, and in no manner proved that the detectives had performed the extent of services mentioned and charged for in the book. [137] When the book was offered to be used in evidence, it was objected to as having been made upon reports received from other persons, and as incompetent. But the objections were overruled, and the defendant’s counsel excepted, and the book was permitted to be used by way of evidence in support of these charges. The plaintiff, without it, had no recollection of the items, and was dependent upon these charges in the book to make out and sustain his action for the compensation claimed to be payable to the different detectives. After it was ruled by the referee that the book might be used by the witness to make out his case, it was then agreed that a copy of the entries in the book might be put in evidence in the case, subject to the objections and exceptions already taken, and that copy was introduced; and upon the force and effect of this evidence the referee made his report, by which he allowed the charges made in favor of the plaintiff, and, after deducting $3,600 paid to him, directed a judgment for the sum of $5,331.88, the balance found to be due him, together with interest. These items of charges for the services of detectives were not otherwise proved than by the entries made in the book by the plaintiff from the preceding book, in which the entries were made from the slips made and reports furnished of the services claimed to have been rendered; and the proof upon which the case was heard and decided, was, in substance and effect, no more than what the detectives themselves had stated in their reports, or was mentioned in these slips, as to the extent of the services performed by them. The evidence traced back in this manner consisted, as to the extent of the charges, of no more than the unsworn statements or reports of the detectives, and that was not evidence against the defendants in this action, and they were not made evidence by the circumstance that what they had reported was communicated to the attorney for the defendant; for it was not shown that it was reported to him the extent of services they claimed to have performed, or that he assented to or accepted their reports or statements for that object, but what seems to have been reported to him was what these detectives had observed and discovered, and the witnesses who would be obtained by reason of their services. This evidence fell far short of what is required to authenticate charges made in this manner, so as to render them admissible against the party or parties to be affected by the charges. What should have been done to make this book or the charges contained in it evidence was proof from the detectives themselves, or otherwise, that they truthfully reported to the plaintiff the time devoted by themselves to this employment; and then, after that proof should be made, the further evidence of the plaintiff that the charges were accurately entered in the books might have rendered them evidence. The legal rule upon this subject was very fully examined in Mayor, etc., of New York v. Railroad Co., 102 N. Y. 572, 7 N. E. Rep. 905. But there the performance of the services charged in the books were shown to have been rendered and reported accurately before making the charges, and to have been correctly entered in the-books which were received; and that is the least, in a case of this description, upon which the law will permit the entries in the books to be read in evidence. Gould v. Conway, 59 Barb. 355; Ives v. Waters, 30 Hun, 297;, Mayor, etc., of New York v. Railroad Co., 31 Hun, 241. In this last case the opinion to this effect was delivered by Mr. Justice Brady. An exception exists in favor of a party keeping his own books where, upon proof by persons with whom he has settled by the books, that he keeps true and honest accounts, and that some of the articles have been delivered, the books may be read. McGoldrick v. Traphagen, 88 N. Y. 334. But this pose is not within that exception. Ho futher evidence proving the extent of the services of the detectives was given sustaining the ruling of the referee by which these entries were permitted to be read as evidence. The testimony of Wandell, one of the detectives, on the contrary, was to the effect that the entries made in the first book were made by a young man in the plaintiff’s employment; and, if he was right as to the [138] fact, then still further evidence was required from this person to prove that his entries were correctly made. In no view of the evidence, as it was given, were the entries entitled" to be received or acted upon as proof by the referee; and the judgment should be reversed, anda new trial ordered, with costs to the defendant to abide the event. Van Brunt, P. J., concurs.