App. Div.]

FIRST DEPARTMENT, FEBRUARY TERM, 1903.

430) it was held that the account books of a party are not admissible as evidence of sales and delivery of goods where the delivery was made upon his order, but by a third party. The Court of Appeals in Smith v. Rentz (supra) expressly declares that this rule should not be extended. It would appear, therefore, that this rule should not apply to the account books of a broker, showing sales to and purchases of third parties, in an action between him and his principal. But if the rule were applicable it would not avail the plaintiff. The rule as originally promulgated in the leading case of Vosburgh v. Thayer (12 Johns. 461) required proof as a foundation for the introduction of the books, first, that the party had no clerk; second, that some of the articles sold had been delivered; third, that they are the account books of the party, and, fourth, by persons who have dealt with him and settled by his books, that the party keeps fair and honest accounts. Where this rule is applicable the courts have rigidly adhered to the requirement that this preliminary proof must still be made before the books are admissible as evidence. (2 Rice Ev. 815; Matter of McGoldrick v. Traphagen, 88 N. Y. 334; Smith v. Smith, 163 id. 168; Smith v. Rentz, supra; Stone v. Cronin, 72 App. Div. 565; Powell v. Murphy, supra.) It was shown that the account book received in evidence was the purchase and sales book of Rathborne & Co., and it probably sufficiently appeared that they kept no clerk within the contemplation of this rule which relates to a clerk who has personal knowledge of the transactions. (Smith v. Smith, supra, and Matter of McGoldrick v. Traphagen, supra), but there was a complete failure of evidence that Rathborne & Co. kept fair and honest books by any person who had dealt with them and settled by their books.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

PATTERSON and MCLAUGHLIN, JJ., concurred; VAN BRUNT, P. J., concurred in result; O'BRIEN, J., dissented.

O'BRIEN, J. (dissenting):

In his answer the defendant admitted that he authorized the firm of C. L. Rathborne & Co. to sell short 900 shares of the Northern Pacific Railway Company and 200 shares of Chicago, Burlington and Quincy Railroad Company stock and averred that thereafter

FIRST DEPARTMENT, FEBRUARY TERM, 1903.

[Vol. 80. without his consent, authority or knowledge such firm bought in for his account the same stock. The answer further alleges that if the firm sold and thereafter purchased the stock, it was done without the consent, knowledge or authority of defendant and without previous notice of intention so to do to defendant. Upon the trial the defendant made no defense, introducing no evidence, and placed his reliance mainly upon what he could find vulnerable in the plaintiff's case. Taking the form of the answer, supplemented as it was by testimony that was unobjectionable, and enforced by the defendant's letter admitting liability, there was sufficient foundation for the inference that by authority and with knowledge of the defendant, the plaintiff's firm had first sold short and thereafter bought in, to cover for the account of the defendant, the stocks in question.

What remained in doubt were the prices at which the stocks were sold and the purchases made; and for the purpose of fixing such prices, the only evidence of which, it seems to me, the case was susceptible was introduced, namely, the account books of the firm. consisting of the original entries made by the bookkeeper who had charge of making them and who testified that they were made at the time from information given him by the telephone boy in the office who received it from the telephone messenger in the exchange who, in turn, received the information from the exchange member of the firm. This testimony was corroborated by the plaintiff, who was the exchange member and gave the information. The two telephone boys were not called, but to do so would have been a useless formality, because from the nature of the transactions it would be impossible for them in the ordinary run of business to remember any particular transaction upon a particular day, and more especially would it be impossible for them to recall the prices at which the stocks were sold and subsequently purchased and which they sent and received over the telephone and gave to the bookkeeper. The telephone clerks were but part of a system or means of communication between the exchange member of the firm and the bookkeeper by which the former was enabled to communicate his transactions on the exchange to his office. It would be as idle to call them as it would be, with reference to the sending of a letter or telegram, to call the postman who regularly receives and delivers written messages, or the telegraph operator who regularly forwards and

App. Div.] delivers communications by wire, because neither of the clerks could add any certainty to the testimony of the plaintiff who made the sale or purchase on the exchange, supplemented by the testimony of the bookkeeper who received the information thereof, and, as part of the transaction, entered it at the time in the firm's books.

FIRST DEPARTMENT, FEBRUARY TERM, 1903.

I agree with Mr. Justice LAUGHLIN that the rule that obtains with reference to introducing shopkeepers' and tradesmen's books in evidence has no application, and for the simple reason that such a rule, if applied to the books of account of large business enterprises, would, in nearly every instance, operate as a denial of justice.

The old common-law rule of evidence as to tradesmen's books is no longer applicable to most of our modern methods of carrying on large and extensive business transactions. The position of the ancient shopkeeper, who himself sold and delivered his goods direct to the customer, and who made his own memoranda in books, was enlarged when, with the increase of business, he was obliged to employ a bookkeeper or a clerk, and to resort to entries in books of account made by the clerk or bookkeeper, because in no other way could he keep track of the growth in his business. With the introduction of department stores, embracing a number of different kinds of trade, and the formation of exchanges, with their indefinite extension of daily transactions, and of large corporations, whose business is conducted through numerous agencies, the old rule with respect to them can have no place, and it is useless longer to refer to it as in any sense applicable to such modern methods of doing business. It is inconceivable, with the growth in every other direction, that the law itself should not grow so as to meet the changed conditions, and it seems to me in such a case as this a waste of time to expend labor in the discussion of old rules which can have no possible bearing upon, or application to, the reasons or principles which should govern in determining the extent to which books of account, such as are here involved, may be resorted to as evidence.

It is, of course, necessary that a proper foundation for their introduction should be laid in order that their verity may be established, but when this is done by the most complete and satisfactory proof which from the nature of the business can be obtained, then the reason which permits the best evidence to be given should be held as applicable to such books of account, properly authenticated, as to

FIRST DEPARTMENT, FEBRUARY TERM, 1903.

[Vol. 80. any other kind of evidence. I think, therefore, that where a proper foundation is laid, as in this case, for introducing entries in books of account of the nature and character of those here involved, and which are resorted to merely for the purpose of fixing the items or prices at which the stocks were sold and bought, they are competent. To render them admissible for that purpose, it must be shown that the entries are original entries, proven to be such by the person who made them, in the usual course of business, made at the time the transactions they recorded took place, and are a true and correct record of such transactions. I think that such a foundation was laid in this case, and that under the authorities, as it was the best evidence of which the case was susceptible, such entries were not hearsay, but were original evidence, and, therefore, admissible for the purpose for which they were introduced. (State Bank of Pike v. Brown, 165 N. Y. 216; Mayor v. Second Ave. R. R. Co., 102 id. 572.)

I dissent, therefore, from the conclusion of the majority of the court, thinking as I do that, where there was a virtual admission of the transactions having occurred, and all that was required from the books was a definite statement of the prices at which the stock was sold and bought, it was competent, because it was the best evidence of which the case was susceptible, to permit resort to the books for the purpose of ascertaining such prices.

Judgment reversed, new trial ordered, costs to appellant to abide

event.

MARIE HUEBNER, as Administratrix, etc., of OTTO HUEBNER, Deceased, Appellant, v. GEORGE L. HAMMOND and HAMBURG AMERIKANISCHE PACKETFAHRT ACTIEN GESELLSCHAFT, Respondents.

Negligence-injury to a longshoreman, employed on a steamship, while upon a lighter coming alongside the steamship, by falling through a defective grating — neither the steamship company nor the owner of the lighter held to be liable.

In an action brought against a steamship company and the owner of a lighter to recover damages resulting from the death of the plaintiff's intestate, who was a longshoreman in the employ of the steamship company, it appeared that on the day of the accident, while the crew of the lighter, which had no propelling

App. Div.]

FIRST DEPARTMENT, FEBRUARY TERM, 1903.

power, were engaged in bringing it alongside the steamship, for the purpose of transferring its cargo to th steamship, the decedent's foreman directed him and a number of other longshoremen to assist the crew of the lighter; that while the decedent was walking along the deck of the lighter he stepped upon a grating covering a manhole in the deck; that the grating tilted up edgewise causing the decedent to land astride its upturned edge and to sustain injuries resulting in his death.

The grating, which was set into the frame of the opening and was not fastened thereto in any way, did not fit tightly, there being a play of about one-eighth of an inch all around the grating between it and the frame. There was no evidence that the manhole and its appurtenances were faulty in construction or were different from those used for a like purpose on similar boats or that at the time of the accident any part of such appurtenances was broken or out of repair or that anything had occurred previous to the accident which would indicate that such an accident could possibly happen. The crew of the lighter did not ask for assistance in bringing the lighter alongside the steamship and they could have done so without receiving any assistance. Held, that the complaint was properly dismissed as to both the defendants; That the steamship company was not bound to inspect the deck of the lighter before allowing the decedent and his fellow-employees to go upon it, and that so far as the steamship company was concerned, the decedent assumed the risk of the danger which he encountered;

That the decedent was upon the lighter, at most, by the implied sufferance or license and not by the invitation, either express or implied, of the owner thereof, who was consequently under no obligation to protect the decedent from injury;

That, even if the owner of the lighter did owe to the decedent a duty to provide him with a reasonably safe place in which to do his work, the owner could not be held liable unless the plaintiff proved that the manhole and its appurtenances were improperly constructed in the first instance or else had become defective and out of repair and that the owner of the lighter had notice of such defects or by the exercise of reasonable care could have discovered them.

LAUGHLIN and O'BRIEN, JJ., dissented from the dismissal of the complaint as to the owner of the lighter.

APPEAL by the plaintiff, Marie Huebner, as administratrix, etc., of Otto Huebner, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 29th day of January, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

This is a statutory action, based upon the statute of New Jersey, (Laws of N. J. of 1848, p. 151, as amd. by Laws of 1897, chap. 58) which is similar to that in this State, to recover for the death of Otto