Smith v. Smith

• Decision Date: 15 May 1900
• Citation: 163 N.Y. 168,57 N.E. 300
• Parties: SMITH v. SMITH.
• Court: New York Court of Appeals Court of Appeals

163 N.Y. 168

57 N.E. 300

SMITH

v.SMITH.

Court of Appeals of New York.

May 15, 1900.

Appeal from supreme court, appellate division, Second department.

Action by William F. Smith against Alonzo E. Smith to recover for goods sold and delivered. From a judgment of the appellate division (43 N. Y. Supp. 257) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

Thomas Young, for appellant.

Timothy M. Griffing, for respondent.

GRAY, J.

The plaintiff sought to recover a balance due for coal sold and delivered by him to the defendant. He recovered judgment upon a trial before a referee, and that judgment has been unanimously affirmed by the appellate division. Upon his appeal to this court the defendant assigns as error a ruling of the referee under which the plaintiff's books of account were admitted in evidence. Upon the trial the plaintiff testified to having had business transactions with the defendant, in the sale of coal to him, for some time past; that his books of account contained a correct statement of the coal sold and delivered within the dates in question, and that he personally delivered nearly all the coal covered by the account. He testified that his wife kept his books, and made the entries therein from memoranda furnished by him as made after the delivery of the coal. She also testified to making the entries in that manner, and that they were correctly made. There was evidence on his part, also, to the effect that a copy of the account in the books had been acknowledged by the defendant, with an offer to settle upon some rectification being made. A witness for the plaintiff testified that he had settled with him by his books for eight or ten years, and had always found the books correct. Being cross-examined as to that he said: ‘I knew the accounts were correct simply because I had confidence in him, and paid what he asked. That is all the reason I had for saying they were correct,-because I had confidence in him. * * * I relied on his honesty, and not on my recollection as to the amount of coal I ordered.’ Another witness testified for the plaintiff that he was a book-keeper for a firm that purchased coal from the plaintiff on credit, and that he had ‘settled with him according to his books and according to our own four or five times,’ and ‘always found them to be correct.’ Upon this evidence the books of account were offered by the plaintiff, and the objection to their admission was placed ‘on the ground that they are incompetent, a proper foundation not having been laid for their being admitted as evidence.’ The objection was overruled, and the defendant excepted. The question is thus presented whether, in the evidence which preceded, a foundation had been laid for the admission of the books according to the requirements of a rule of evidence, which should be regarded as established since its formulation in the case of Vosburgh v. Thayer, 12 Johns. 461. It was held in that case that books of account ought not to be admitted in evidence ‘unless a foundation is first laid for their admission by proving that the party had no clerk, that some of the articles charged have been delivered, that the books produced are the account books of the party, and that he keeps fair and honest accounts; and this by those who have dealt and settled with him.’ The rule, as thus laid down, has been since accepted as correct. McGoldrick v. Traphagen, 88 N. Y. 334;Tomlinson v. Borst, 30 Barb. 42;Dooley v. Moan, 57 Hun 535,11 N. Y. Supp. 239. Under these restrictions account books become evidence for the consideration of the tribunal with which the determination of the issues rests. As evidence which is manufactured by the party, they should be received with...