Mason v. Wedderspoon

Hardin, P. J.: Entries made in the order book or account book of the deceased by him, not in the presence of the defendant, were not competent evidence. (Peck v. Von Keller, 76 N. Y., 604; Bigelow v. Hall, 91 id., 145 ; Dean v. Ætna Life Ins. Co., 2 Hun, 358; reversed, on other grounds, 62 N. Y., 642; Gould v. Conway, 59 Barb., 355; Collins v. Rochwood, 64 How., 57.) Respondent’s counsel calls our attention to Livingston v. Arnoux (56 N. Y., 518), but it does not support the ruling made below and is not in conflict with the cases we have cited. In that case the written memorandum ivas made by an officer, in a matter pertaining to his official duty against his interest, and he had no interest to misrepresent or mistake the facts, nor does tfie case of Peck v. Valentine (29 Hun, 668) justify the ruling made by the court below. In that case the witness, who made original entries of money received by defendant, which he was charged with embezzling, reported them to the plaintiff, and witness and plaintiff testified that the memorandum produced was transcribed from the one actually made by the witness, but even that case was reversed. (94 N. Y., 569.) Respondent’s learned counsel calls our attention to section 3063 of the Code of Civil Procedure, which requires the appellate court [22] to give “judgment according to the justice of the case without regard to technical errors or defects which do not affect the merits.” The issue of fact was close, and until that is properly and legally determined, the court may not say where the “ j ustice of the case” lies. The error in the ruling introduced incompetent evidence which bore upon the very core of the issue, and that incompetent evidence may have produced the determination of the issue of fact made by the justice adverse to defendant. In Wright v. Dugan (15 Abb. N. C., 121), the court, in speaking of the improper evidence admitted, said : “ But we cannot see that it could rightfully have affected the result to such an extent as to demand a new trial.” That was an equity case and fell under section 1003 of the Code of Civil Procedure. 1'n the case in hand, we think it very probable that the improper evidence affected the result; we are unwilling to guess or say that it did not affect the merits. The error is such that we ought to attend to it, and reverse the judgments below. (Collins v. Rookwood, supra.) Boardman and Follett, J. J., concurred. Judgment of the County Court of Otsego county, and the Justice’s judgment affirmed thereby, reversed, with costs.