Clark v. Bullock

(after stating the facts.) The journal and the accounts therein, as set forth as plaintiff exhibits, were introduced and offered in evidence for the purpose of showing a consideration for the note in suit and an indebtedness to the said Benjamin S. Clark, existing at the time the note was given; plaintiff's counsel stating that he “proposed to show how largely the company and Mr. Wilson and Dr. Slocum, were indebted to Mr. Clark at the time this note was given by the attorneys work, and by his books for his services as attorney. ” The witness Clark testified that the accounts in the journal were in his handwriting and were made by him from a “day-book” kept by his employer, and also stated that he could testify from memory, without’using the books for the purpose of refreshing his memory. To constitute the entries in the ledger made by the witness Clark, who was not a party to the action, competent evidence, such entries must be shown to have been made by the witness Clark in the usual course of business, and which entries it was his duty to make at or about the time of the transaction, viz., in the years 1884 and 1885, whereas it appears that such entries were made after the death of Benjamin S. Clark, and also that the witness Clark had competent knowledge of the fact, or that it must have been his duty to have known it. 1 Greenl. Ev. § 115; Gould v. Conway, 59 Barb. 355; Burke v. Wolfe, 38 N. Y. Super. Ct. 264; Whitman v. Horton, 46 N. Y. Super. Ct. 531. The witness Clark testified, when shown the ledger: “That is the book that I entered the charges that Mr. Clark made in his day-book; it is a journal, and it is *410in my handwriting.” When again shown the book he testified that the ledger was made up after Mr. Clark’s death, (he died April 7,1888;) that Mr. James W. Barker made it. It was written up from Mr. Clark’s books of original entry. The witness Clark having stated that he could testify as to the transaction without looking at the book, his testimony as to those transactions was competent evidence, and the book, not being a book of original entries, was improperly admitted in evidence, and undoubtedly influenced the minds of the jury in determining what, if any, amount was due to Clark from the gas company and from Wilson at the time the note was given, inasmuch as plaintiff’s counsel had stated that it was offered by him for the purpose of showing how large such indebtedness was. Without considering the several other,points raised on the part of the appellant, I think--the judgment and order appealed from, for the reasons above stated, should be reversed, with costs, and,a new trial ordered.