McGoldrick v. Traphagen, 88 N. Y., 334.

decisions have extended the doctrine very far in favor of the reception of this class of evidence, and sufficiently so to have justified the admission of the books of account as evidence in conjunction with the other proofs in the case (Krom v. Levy, 1 Hun, 171; Filkins v. Baker, 6 Lans., 546; Merrill v. Oswego R. R., 16 Wend., 599; Gray v. Mead, 22 N. Y., 462; Marclay v. Schults, 29 N. Y., 346, 351).

On the second trial before another referee the books were received, and judgment was given for plaintiff.

The General Term affirmed the judgment without further opinion.

The Court of Appeals now affirmed the judgment.

Charles Matthews, for defendant appellant, insisted that the books should have been excluded because on the grounds among others that (1) there was no proof that any particular service charged was actually rendered; (2) the claimant kept a bookkeeper; (3) the ledger could not be deemed a book of original entries; (4) the customers produced had never seen plaintiff's books; and the bookkeeper being an employee was not a customer within the rule.

J. M. Martin, for respondent, cited besides the cases in the opinion, Stroud v. Tilton, 4 Abb. Ct. App. Dec., 324; Davidson v. Powell, 16 How. P., 467; Breinig v. Matzler, 23 Penn., 156; Ewart v. Merrill, 5 Haw. (Del.), 126; Bailey v. Barnelly, 23 Geo., 528; Karr v. Stephens, 24 Iowa, 123; Hill v. Scott, 12 Penn., 168; Wollenweber v. Kitterlinus, 17 Penn., 389; Pendleton v. Weed, 3 E. D. Smith, 72.

MILLER, J. We think that there was no error committed by the admission of the ledger of the respondent as evidence. It was proved upon the trial that the work done by the respondent for the testator was first entered at the time upon a slate, generally by the respondent. The entries werethen transferred by the bookkeeper to a day book about every day, and then to the ledger from the day-book. No prices for the work were entered until the charges were carried out into the ledger, and then the respondent fixed the prices and they were entered accordingly.

McGoldrick v. Traphagen, 88 N. Y., 334.

The respondent testified that he directed the men in shoeing the horses and superintended the work generally, and attended in part to the shoeing of the horses himself, and they were shod from the date of the bills to the death of the testator. That he kept the account, entered the work when there, except when occasionally absent, and then the foreman did it, and that the entries were correctly carried from the slate to the day-book, and from the day-book to the ledger. There was evidence that one of the bookkeepers saw some work done and made some entries on the slate, and also testimony from other witnesses showing that the work had been done by the respondent and his workmen; the manner in which the account had been kept and the account showed a credit of $3,247 for moneys paid by the testator. There was no contradictory testimony as to the correctness of the amount; nor were any witnesses sworn for the defendant to contradict the evidence given as to the nature of the services rendered or to prove that they were not rendered. It also appeared that the respondent kept no clerk who had anything to do with his accounts or his business generally, but that he had a bookkeeper who transferred the same as already stated. The accounts of the respondent were really kept by himself or under his immediate direction, with the assistance of a bookkeeper to transfer the original entries made from the slate to the day-book and from the day-book to the ledger. This was done under his superintendence, and by his direction expressly the prices were carried out. Until then the entries were imperfect and incomplete, and neither of the books contained all which was required to make complete entries showing the work done and the amount of the charges made for the same. There was no entry of the entire charge prior to the price being carried out. As it stood then the ledger contained but imperfect entries of the items with no prices, and when these prices were entered they were original entries of such prices. Neither the slate, the day-book nor the ledger was perfect of itself. As a book of original entries all of them may be taken together; the ledger equally with the day-book may be regarded, we think, as a book of original entries. Without it there was no charge actually made in full, showing any service rendered and the amount claimed. With it the charges made are complete, and

McGoldrick v. Traphagen. 88 N. Y., 334.

the ledger contained the first original entry of them as an entirety. It was then competent evidence as a book of original entries, unless there was a failure to comply with some other requirements of the law as to the admissibility of books of account as evidence.

It claimed that there was no proof that the respondent keeps honest and correct books. Several witnesses testified that they had settled their accounts with the respondent and found them honest and correct, but had never seen the books.

The bills settled, which were proved to have been copied from the books, were introduced in evidence and the respondent's bookkeepers testified that they were copied correctly from the books. One of them also swore that he had settled his own account with the respondent by his books, and to the best of his knowledge he kept honest books and that he never heard anything to the contrary. Although the evidence of those who had settled from copies from the books which were produced does not strictly comply with the rule stated as to this portion of the proof, the evidence of the bookkeeper who settled his accounts by the books supplied this defect, and he testified to all that was required within the authorities. The rule in regard to this subject is that the party shall prove by those who have dealt and settled with him that he keeps fair and honest accounts. (Vosburgh . Thayer, 12 Johns., 461.)

We do not discover any reason why a bookkeeper who has an account with his employer is not a competent witness within the rule stated. He deals with the employer, has an account which he has settled from the books, and ought to be able to state whether the accounts were honestly and fairly kept. The rule is a general one and no reason exists why it should be restricted in its operation so as to exclude any one who deals with the party. In Hauptman v. Catlin (1 E. D. S. [N. Y. C. P.], 729), it is laid down in the opinion of one of the judges that the correctness of the books cannot be proved by persons in the employ of the party. In this case one judge dissented, another judge did not concur in this view, and the case was disposed of upon other grounds. No authority is cited which sustains the rule laid down in the opinion referred to, and I am unable to perceive any prin

McGoldrick v. Traphagen, 88 N. Y., 334.

ciple upon which it can be upheld. The points of the appellant's counsel do not distinctly claim that either of the respondent's bookkeepers who had charge of the books alone was a clerk within the meaning of that term, and within the rule applicable to this species of evidence. Be that as it may, however, we think that the clerk intended was one who had something to do with and had knowledge generally of the business of his employer in reference to goods sold or work done, so that he could testify on that subject. It evidently means an employee whose duty it is to attend to the details of business, and thus is able to prove an account, and not one who from his isolated position as a bookkeeper can have but little means of knowledge personally as to the transactions done or information relating thereto, except what is mainly derived from others. The latter position was that occupied by the bookkeepers of the respondent, and they were in no sense clerks within the meaning of the law as to evidence of this character. The authorities are numerous which hold that books containing entries made by those whose duty it was to make them in the usual course of business are competent evidence when other requisites are sufficiently established. (Bank of Monroe v. Culver, 2 Hill, 531; Merrill v. Ithaca and O. R. R. Co., 16 Wend., 586; Krom v. Levy, 1 Hun, 171, s. c. 3 Supm. Ct. (T. & C.) 704.) The ledger of the respondent was clearly admissible within the rule as to the admission of books of account as evidence. That they were transferred from a slate does not affect their admission as testimony. (Sickles v. Mather, 20 Wend., 72; Faxon v. Hollis, 13 Mass., 427.)

While the large account of the respondent should induce caution and close scrutiny, the evidence should not be excluded when it is apparent that no rule of law has been violated. It may be observed that there is considerable evidence in this case to show that the demand of the respondent is honest and just, indepenIdent of the books.

The questions raised as to the admission of other evidence are without merit and do not require examination.

All the judges concurred except FINCH and TRACY, JJ., dissenting, and RAPPALLO, J., absent.

Judgment affirmed.

Smith v. Rentz, 131 N. Y., 169.

SMITH v. RENTZ.

New York Court of Appeals, February, 1892.

[Reported in 131 N. Y. 169, reversing 37 State Rep., 695; s. c. 14 N. Y. Supp., 255.]

The mere inspection by the adverse party of a book or paper produced upon notice does not give the party producing it the right to put it in evidence.

The rule admitting in evidence the books of tradesmen, and other persons engaged in business, in their own favor, is confined to transactions in the ordinary course of buying and selling or rendition of services, and has no application to books or entries relating to cash items or dealings between the parties-e. g., the books of a person who acted as banker and general business agent of another.

Appeal by defendant from the affirmance of a judgment by the General Term of the Supreme Court of the First Department entered upon the report of a referee, appointed at circuit, to hear and determine all the issues.

Eugene Smith as executor of Richard Patrick, deceased, sued Frederika Rentz for moneys advanced and paid out by plaintiff's testator in behalf of defendant as her banker and general business agent.

The Supreme Court at General Term held (37 State Rep. 695; s. c., 14 N. Y. Supp. 255), that the books of plaintiff's testator were admissible in his behalf, because on examination of plaintiff before the trial, they had been produced on defendant's notice, and inspected by his attorney; and that they were also admissible, notwithstanding the account related wholly to transactions in money, under the general rule admitting the books of a party keeping no clerk.

Leopold Leo, for appellant.

II. B. Closson, for respondent.

ANDREWS, J. [After considering at length and ruling on the point stated in the first head note, continued thus]:

The claim is also made that the books were competent as original evidence of the entries under the rule making books