Driggs v. Smith

By the Court, Freedman, J. The testimony given by the parties on the trial as to the amount actually loaned was conflicting. Plaintiff testified that on a certain day in the month of July, 1870, he borrowed from the defendant $1,887.68, which he received through Mitchell, and $195.62, which he received from the hands of the defendant. His counsel then produced a paper and requested plaintiff to look at it, and to state what it was. Plaintiff, in. pursuánce of such request,, made the following statement: “ About a week after the loan was made I called on Mr. Smith, the defendant, and asked the exact amount of money received from him, as I had no memorandum of it. He told me $1,887.68 as the amount paid by him to Mitchell, and $195.65 paid in money to me. I wrote it down on this piece of paper on his desk, and that was all the money received by me.” The contents of the paper were as follows: “ Cash from Silas C. Smith, by Mrs. De Reeve, $195.65; two notes of $250 each, payable in three and six months, for the interest on $1,887.68 for six months.” The paper was thereupon offered in evidence. Defendant’s counsel objected to it as irrelevant and incompetent, for the reason that it did not appear that witness’s recollection was not clear and distinct, but that he having testified in detail, the contrary appeared. The objection was overruled and the paper admitted. Defendant ekeepted, and, on appeal, rested his entire case upon such exception. As shown in Guy agt. Mead (22 N. Y., 462), the doctrine of the courts of this state originally was that such a paper could not be given in evidence as an independent piece of testimony. The rule was that it might be referred to by a witness to refresh his money, but that he must then swear to the truth of the facts or his statement would not be evidence. [450] Subsequently it was held that original entries might be read in evidence, though the witness had forgotten the fact attested by .them; but the rule was restricted to entries made by the witness in the course of his business. In Halsey agt. Sinsebaugh (15 N. Y., 485), the rule was still further relaxed, and the principle first stated in Cowen and Hill’s Notes to Phillips’ Evidence (note 528 to p. 290), “ that an original memorandum, made by the witness presently after the facts noted in it transpired, and proved by the same witness at the trial, may be read by him, and is evidence to the jury of the facts contained in the memorandum, although the witness may have totally forgotten such facts at the time of the trial,” was adopted without reservation and laid down as the law of'this state. In Russell agt. The Hudson River Railroad Company (17 N. Y.), 134, Selden, J., who had delivered the opinion of the court in Halsey agt. Sinsebaugh, restated the rule to be that “ a witness who says that, after refreshing his memory by a written memorandum made by himself at or about the time of the occurrence, he cannot recollect the facts, but that he is confident that he knew the memorandum to be correct when it was made, is not required to swear to the facts in positive terms, but the memorandum itself is received in connection with and as auxiliary to the oral testimony.” At the same time, however, it was held, with the concurrence of. all the judges, that “ it is an indispensable preliminary to the introduction of such a memorandum in evidence that it should appear, as it did in the case of Halsey agt. Sinsebaugh (supra), that the witness is unable without the aid of the memorandum to speak from memory as to the facts. It is only as auxiliary to, and not as a substitute for the oral testimony of the witness, that the writing is admissible. It is the duty of the court in all such cases to see, before receiving the memorandum in evidence, that it was made at or about the time of the transaction to which it relates, that its accuracy is duly certified by the oath of the witness, and that there is a necessity [451] for its introduction on account of the inability of the witness to recollect the facts.” And as it appeared that the witness had a distinct recollection of all the facts, independently of the memorandum, the latter was held to have been improperly admitted, and the judgment was, for that reason, reversed and a new trial ordered. As thus settled, the rule is still in force (Brown agt. Jones, 46 Barb., 400; Meacham agt. Pell, 51 id., 65). Hone of the authorities cited by the respondent has worked a change in it. In Guy agt. Mead (22 N. Y., 462), in which the judgment was reversed on account of the exclusion of the memorandum, the witness had testified that he had no recollection independently of the writing. In Philbin agt. Patrick (6 Abb. [N. S.], 284), and in Lewis agt. Ingersoll (1 Keyes, 347), the admission of the memorandum was upheld, because the proper foundation had been laid. In Marchy agt. Schults (29 N. Y., 346), and in Downs agt. N. Y. Central R. R. Co. (47 N. Y., 83), the memorandum was rejected on account of its not being the original. The case of The Townsend Manuf. Co. agt. Foster (51 Barb., 346) appears to have been decided upon the authority of Halsey agt. Sinsebaugh (supra); and the point, that a foundation for the introduction of the memorandum must be laid, was not raised at all. It is clear, therefore, that in the case at bar, the memorandum was improperly admitted. It was incompetent evidence; and as it fully appears that it did not relate to a comparatively or relatively unimportant branch of the case, but to a highly material point, in fact to the point upon which the case turned, and in respect to which it tended to corroborate plaintiff’s version, the error cannot be disregarded (Worrall agt. Parmelee, 1 N. Y., 519; Williams agt. Fitch, 18 id., 546). The decision in Murray agt. Smith (1 Duer, 412), as shown in Wilmot agt. Richards0on (6 id., 328 [339]), was reversed by the court of appeals solely on the ground that the admission of incompetent evidence, bearing upon the [452] issues and duly excepted to, constitutes error, which entitles the party excepting to a new trial. That the question has been presented by a bill of exceptions, instead of a full case, is no ground for a departure from, but rather a reason for adherence to the last named rule; because, without the whole evidence before us, it is impossible to say that the admission of the memorandum did not prejudice the defendant in the estimation of the referee. The judgment must be reversed, the order of reference vacated and a new trial ordered, with costs to appellant to abide the event. Curtis and Van Vorst, JJ., concurred.