Leask v. Hoagland

• Decision Date: 02 April 1912
• Citation: 98 N.E. 395,205 N.Y. 171
• Parties: LEASK et al. v. HOAGLAND et al.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 171

98 N.E. 395

LEASK et al.

v.HOAGLAND et al.

Court of Appeals of New York.

April 2, 1912.

Appeal from Supreme Court, Appellate Division, First Department.

Action by George Leask and others, as executors, against Charles F. Hoagland and others. From a judgment of the Appellate Division (144 App. Div. 138,128 N. Y. Supp. 1017), affirming a judgment for plaintiffs, a part of defendants appeal . Reversed.W. C. Carroll, for appellants.

J. Hampden Dougherty, for respondents.

GRAY, J.

The plaintiffs are the executors of Hudson Hoagland, deceased, whose will disposed of the residuary estate among his nephews and nieces in proportions stated. The defendant Charles F. Hoagland is a nephew, who had assigned to different persons portions of his share in the residuary estate. This action was brought against him and his assignees that it might be adjudged what amounts were due to the defendants and the order of their payment, ‘after the set-offs of said defendant's (Hoagland's) indebtedness.’ Questions had arisen on the accounting of the plaintiffs, as executors, upon objections filed by Hoagland to their offsetting against his share a promissory note for $10,000, made by him to their testator, which the surrogate refused to decide for lack of jurisdiction. Thereupon this action was commenced, in which it is claimed by the plaintiffs that Charles Hoagland was at the testator's death further indebted to him beyond the amount due upon the above-mentioned note for moneys loaned in sums aggregating $5,108.45. This alleged indebtendess had not been claimed upon the accounting in the Surrogate's Court. Whether the amounts of the note and of these alleged loans constituted debts, which should be charged against his share, was the issue presented, and that was decided in favor of the plaintiffs, at the Special Term. The Appellate Division affirmed that determination by a divided court, and, upon this appeal, the one question presented relates to the sufficiency of the evidence to establish the fact of an indebtedness from the defendant Hoagland to the testator beyond what was shown by his note for $10,000.

[1] The testator was unmarried and childless, and had retired from active business. His living relatives were a brother and a number of nephews and nieces. He had accumulated a large estate, consisting in personalty, which he managed himself, employing a man named Aitken to assist him as secretary or bookkeeper. Aitken survived the testator; but died before the trial of this action. Among the assets, the plaintiffs found Charles Hoagland's promissory note for $10,000, which is no longer in question, and they also found a number of paid checks running to his order from a date subsequent to that of the note up to a short time before the testator's death, a period of nearly three years, indorsed by him and aggregating $5,108.45. The trial court found that these checks represented loans of money, and was influenced, in making the finding, as is apparent from other findings, by certain entries made upon some of the stubs, from which checks had been detached, and by Charles Hoagland's condition of poverty and indebtedness during the time .

[2] The plaintiffs, upon whom the burden rested to establish the indebtedness claimed, relied upon the checks, with their indorsements, upon entries on the stubs of the first two of these checks, as indicating that they were loans, and upon the presumption that the checks following the two first were likewise loans, having regard to Charles Hoagland's existing indebtedness and to his lack of means. They invoke the rule that the law in such a case does not presume a gift, and argue that, as the circumstances plainly negative the idea of any indebtedness on the testator's part at the time, the checks could only have represented loans of money. The presumption that they were such the plaintiffs endeavored to fortify by evidence received over objection and exception of entries upon check stubs at dates preceding the note for $10,000, which contained the name of Charles Hoagland, with a date and a sum in figures. The amounts in these entries aggregated $9,900, and it is claimed that they proved the delivery of corresponding checks for loans, which ‘culminated’ in the giving of the note for $10,000. The checks corresponding to these stubs were not found, and the entries themselves were not in the handwriting of the testator, but in that of Aitken, the deceased secretary. The evidence in the case is meager, and casts no light upon the transactions between the testator and his nephew, Charles, other than may be received from circumstances. These were, as we have seen, Charles' note, the subsequent checks, his impecunious and needy condition, and some notations on check stubs made by a third person.

[3] Considering the evidence relating to the issuance of the checks, which are relied upon as constituting the loans of money, we find that, after proving their indorsement by Charles Hoagland and their payment, entries upon the stubs of two of the checks were read in evidence. The entry relating to the first of the checks, drawn after Charles had given his note to the testator, was: ‘April 12, 1901. Charles F. Hoagland act. to be paid $100 per week, $1,000.’ The second of the entries reads: ‘February 20, 1902. George Leask & Co. for loan to give to Chas . F. Hoagland, $500.’ These entries were in Aitken's handwriting, and their admissibility is claimed as an exception to the rule excluding hearsay evidence, because made in the course of an official employment by one having no interest to misstate the facts and who has since deceased. Livingston v. Arnoux, 56 N. Y. 507. The rule, as one of necessity, exists; but its operation is controlled by the facts of the case. The position of Aitken with the deceased, as shown by the testimony of witnesses who knew of their relations, was that of a private secretary, having some charge of his books. The deceased was not in business at this time otherwise than in connection with the management of his own interests, and Aitken appears to have kept books for him. What, precisely, was the nature of his duties, or what the extent of the intimacy and confidence existing in their relations, does not appear. All that we know of his employment upon the books is what concerns the keeping of checkbooks. So far as it appears, his employer's intentions, or purposes, in giving these checks to Charles, were not made known to him; nor does it appear to have been necessary, in the course of his employment, when drawing a check, that he should know. We can only presume that he was directed to draw it. The reason for receiving statements in entries made in the course of business, as an exception to the rule, is that they were made as a part of the regular work of one's livelihood, or profession, and that ‘the entry must have been of a fact within the personal knowledge of the declarant.’ See Prof. Wigmore's (16th Ed.) edition of Greenleaf on Evidence, vol. 1, sec. 120a. This must be so, and, where we know nothing more of a book entry than that it was made by a person, since deceased, in the regular course of an employment, we should not give trustworthiness to its statement of facts further than as their import is of matters presumably within the personal knowledge of the person who made the entry by reason of that employment.

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