Nat'l Ulster Cnty. Bank v. Madden

• Decision Date: 31 May 1889
• Citation: 114 N.Y. 280,21 N.E. 408
• Parties: NATIONAL ULSTER COUNTY BANK v. MADDEN.
• Court: New York Supreme Court

114 N.Y. 280

21 N.E. 408

NATIONAL ULSTER COUNTY BANK

v.MADDEN.

Supreme Court, New York County, New York.

May, 1889.

Appeal from judgment of the General Term of the supreme court in the third judicial department affirming judgment entered on verdict in favor of defendant.

The action was brought by the National Ulster County Bank (now appellant) against Michael J. Madden (now respondent), impleaded with Sarah M. Fowks.

John J. Linson, for appellant.

E. S. Wood, for respondent.

BRADLEY, J.

The action was brought to recover the amount of eighteen checks drawn by the defendant, Sarah M. Fowks, by her attorney, Horatio Fowks, upon the National Bank of Rondout and payable to the order of the defendant, Madden, and endorsed by the latter. Madden alone defended, and alleged that after the checks were endorsed by him, they were altered in respect to the time for payment, so as to make them payable at a future day without his knowledge or consent. He testified that when so endorsed by him no time of payment was expressed in any of them. When they were discounted by the plaintiff, they respectively appeared to be payable at specified times subsequent to their dates. The defendant Madden also testified that when he endorsed the several checks, he made a memorandum entry of the dates, amounts and time when payable of them respectively, and in his examination in chief, in his own behalf, he was permitted against the objection and exception of the plaintiff's counsel to read such memoranda to the jury. The main question arises upon the admissibility of those entries in evidence. The rule in this State, prior to the decision in Merrill v. The Ithaca & Oswego R. R. Co., 16 Wend. 586, was that a witness might refer to his memorandum to refresh his memory, and then was permitted to testify to the facts, provided he could do so independently of it upon his recollection. That was the extent of the rule in this respect (Feeter v. Heath, 11 Wend. 479;Lawrence v. Barker, 5 Id. 301).

In the Merrill case, the court reviewed the cases, and cited text books upon the subject, and announced the conclusion, that original entries read by a witness and which he should testify, were correctly made, might be read in evidence, though he remembered nothing of the facts represented by them, but that to render such entries admissible, it should appear that “every source of primary evidence had been exhausted.” Since then, so far as we have observed, it has uniformly been held admissible for the witness to refer to the original entries in respect to the facts, which he is called upon to testify, and if he verifies their correctness and is unable to recollect such facts independently of such entries, they may be read in evidence (Bank of Monroe v. Culver, 2 Hill, 531;Cole v. Jessup, 10 N. Y. 96;Halsey v. Sinsebaugh, 15 Id. 485; Russell v. Hudson River R. R. Co., 17 Id. 134;Guy v. Mead, 22 Id. 462;Squires v. Abbott, 61 Id. 530-535;Howard v. McDonough, 77 Id. 592;Peck v. Valentine, 94 Id. 569;Mayor, etc. v. Second Ave. R. R. Co., 102 Id. 572-580;Brown v. Jones, 46 Barb. 400;Meacham v. Pell, 51 Id. 65;Kennedy v. O. & S. R. R. Co., 67 Id. 170-182).

The General Term cited on this question Guy v. Mead ( supra) and made the remark, that while that case differed from this in the fact that there the witness had no recollection of the matter independently of the memorandum referred to, the court did not place its decision upon that ground. Although in that case the court did not expressly declare that the admissibility of the evidence was dependent upon the want of recollection of the witness, the fact existed which rendered the paper competent evidence within the rule as before stated. And reference was there, with apparent approval, made to Russell v. Hudson River R. R. Co. ( supra), where the judgment of the court below was reversed for error in receiving a memorandum in evidence, when for aught that appeared, the witness had recollection of the facts, to which he was called upon to testify, independently of it. And the cases above cited, determined subsequently to Guy v. Mead, state and adhere to the doctrine that original entries made by a witness are admissible as auxiliary to his evidence, only when he is unable to distinctly recollect the fact without the aid of it. This proposition seems well settled in this State by a current of authority for the last fifty years, which now requires adherence to it, unless it may be seen that it works unjustly upon the rights of the parties. The rule which renders such entries admissible rests upon the principle of necessity for the reception of secondary evidence, and is not applicable where the witness has a distinct recollection of the essential facts to which they relate. The primary common law proof is there furnished, and the necessity for evidence of the lesser degree does not arise, and this right so qualified to introduce such secondary evidence is the better rule in view of the opportunity, which otherwise might exist, to super-add a written memorandum to the evidence of a witness, which, it can not be said, would not sometimes be improperly made available to strengthen his testimony with a court or jury, and such may be within reasonable apprehension until the moral infirmity of human nature becomes exceptionally...