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

of account in certain cases evidence in favor of the party keeping them. We think there is no foundation for this contention.

The rule which prevails in this state (adopted, it is said, from the law of Holland), that the books of a tradesman or other person engaged in business, containing items of accounts, kept in the ordinary course of book accounts, are admissible in favor of the person keeping them against the party against whom the charges are made after certain preliminary facts are shown, has no application to the case of books or entries relating to cash items. or dealings between the parties.

This qualification of the rule was recognized in the earliest decisions in this State, and has been maintained by the courts with general uniformity (Vosburgh v. Thayer, 12 John., 461). It stands upon clear reason. The rule admitting account books of a party in his own favor in any case was a departure from the ordinary rules of evidence. It was founded upon a supposed necessity, and was intended for cases of small traders who kept no clerks, and was confined to transactions in the ordinary course of buying and selling, or the rendition of services. In these cases some protection against fraudulent entries is afforded in the publicity which, to a greater or less extent, attends the manual transfer of tangible articles of property or the rendition of services, and the knowledge which third persons may have of the transactions to which the entries relate.

But the same necessity does not exist in respect to cash transactions. They are usually evidenced by notes, or writing, or vouchers in the hands of the party paying or advancing the money.

Moreover, entries of cash transactions may be fabricated with much greater safety and with less chance of the fraud being discovered than entries of goods sold and delivered, or of services rendered.

It would be unwise to extend the operation of the rule admitting a party's books in evidence beyond its present limits, as would be the case, we think, if books containing cash dealings were held to be competent.

Parties are now competent witnesses in their own behalf. A

Burton v. Driggs, 20 Wall., 125.

resort to books of account is thereby rendered unnecessary in the majority of cases.

We think the ledger was erroneously admitted in evidence, and the judgment below should, therefore, be reversed and a new trial ordered.

All the judges concurred except MAYNARD, J., taking no part.

BURTON v. DRIGGS.

United States Supreme Court, 1873.

[Reported in 20 Wall., 125.]

When it is necessary to prove the results of voluminous facts or of the examination of many books and papers, and the examination cannot be conveniently made in court, the results either affirmative or negative may be proved by the person who made the examination.*

All the material facts appear in the opinion.

The jury found in favor of plaintiff.

The Supreme Court affirmed the judgment.

SWAYNE, J. [after passing on other points]: The next assignment of error is the admission in evidence "of such parts of the depositions of A. L. Turner and C. P. Steers as refer to what appeared or did not appear on the books of the Tioga County Bank." It was shown by the plaintiff in this connection that the books in question were in the village of Tioga, Pennsylvania, that the plaintiff had endeavored to obtain them for use on this trial, and that those having the custody of them refused to permit them to go. The testimony of Turner was, in substance, that he was the cashier, that he had examined the books and papers in the bank relating to its affairs from its organization down to July, 1859, and that he found no evidence of any kind that the defendant ever had any connection or transaction with the bank, or any interest in it whatever; and that subsequently at the request of the plaintiff and for the purposes of this suit,

*It is within the discretionary power of the court to refuse to receive such evidence and require the books to be produced, unless the party gives such evidence as to their absence as to et in secondary evidence of contents. See Von Sachs v. Kretz, 72 N. Y., 548, affg. 10 Hun, 25.

Burton v. Driggs, 20 Wall., 125.

he repeated the examination with the same result. Steers testified that he was cashier of the bank from about the 15th of September, 1858, to about the 29th of April, 1859, and that during that time the defendant, Burton, did not furnish to the bank $7,060.18, or any other sum of money, that his name was never on the books of the bank, nor did the bank owe him anything on any account during that period, and that the witness did not think his name appeared on the books of the bank as a stockholder during that time. The books being out of the State and beyond the jurisdiction of the court, secondary evidence to prove their contents was admissible.

When it is necessary to prove the results of voluminous facts. or of the examination of many books and papers, and the examination cannot be conveniently made in court, the results may be proved by the person who made the examination. 1 Greenl. Ev., § 93.

Here the object was to prove, not that the books did, but that they did not show certain things. The results sought to be established were not affirmative, but negative. If such testimony be competent as to the former, a multo fortiori must it be so to prove the latter.

NOTE.-In Lewis v. Palmer, 28 N. Y., 278, an action for conversion, in which the validity and effect as against defendants, of a chattel mortgage made by W. & W. H. Lewis to plaintiff was in question, one of that firm, examined as a witness, was asked: "What was the state of the accounts between the plaintiff and your firm at the time of the giving of the mortgage?" The answer was: "He was indebted to us about $160; I ascertain this from our books." The defendants then objected to the evidence without a production of the books.

WRIGHT, J. There was no force in the objection. It was not necessary to produce the books of the firm to qualify the witness to answer the interrogatory.

NOTE. - In Boston & Worcester R. R. Co. v. Dana, 1 Gray, 104, BIGELOW, J., said: The defendant further objects that schedules made from the original papers and documents previously proved in the case, showing certain data and results obtained therefrom, and verified by the witness by whom they were prepared, were improperly admitted. But it appears to us, that questions of this sort must necessarily be left very much to the discretion of the judge who presides at the trial. It would doubtless be inexpedient in most cases to permit ex parte statements of

Boston & Worcester R. R. Co. v. Dana, 1 Gray, 104.

facts or figures to be prepared and submitted to the jury. It should only be done where books and documents are multifarious and voluminous, and of a character to render it difficult for the jury to comprehend material facts without the aid of such statements, and even in such cases they should not be admitted unless verified by persons who have prepared them from the originals in proof, and who testify to their accuracy, and after ample time has been given to the adverse party to examine them and test their correctness. Such was the course pursued in the present case, and there can be no doubt that, in a trial embracing so many details and occupying so great a length of time as the case at bar, during which a great mass of books and documents were put in evidence, it was the only mode of attaining to an intelligible view of the cause before the jury.

Kearney v. Mayor, 92 N. Y., 617.

KEARNEY v. MAYOR, ETC., OF NEW YORK.

New York Court of Appeals, 1883.

[Reported in 92 N. Y., 617.]
१

The rule that oral evidence of the contents of a document is not admissible until the absence of the writing has been explained, applies to such a writing as the endorsement of authority to publish, made on an official notice by the officer required by law to cause the notice to be published, when sought to be proved as authorizing the plaintiff, a newspaper publisher, to publish the notice.

It makes no difference that the law did not require the authorization to publish to be in writing.

Proof of the facts excusing the production of the original instrument so as to let in secondary evidence, is addressed to the trial judge and presents a question to be determined by him.

His determination that the explanation is insufficient cannot be reviewed in the Court of Appeals unless the proof was so clear and conclusive as to make it error of law to find against it.

To excuse the non-production of the original document by reason of its loss, the person last known to have been in possession of it must be examined as a witness, notwithstanding he is out of the jurisdiction; for his deposition should be procured or good excuse given. The general rule is that the party offering such excuse must show that he has in good faith exhausted to a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him. Testimony of one who had acted as assistant of the publisher of a newspaper during the transactions in question, that he and his employer had searched in vain in the archives of the newspaper office for a written authorization to make the publication, the price of which is sued for, is insufficient without accounting for omission to produce evidence of search by the principal himself, and among his own papers. If the only witness to the circumstances relied upon as excusing the nonproduction of the best evidence, is the party himself, testifying in his own behalf, the judge is not bound, as matter of law, to credit the statements of a witness thus interested; and, therefore, his decision on the question whether the testimony is sufficient, cannot be reviewed in the Court of Appeals.

The complaint alleged that about a day named, one Scanlon, then and some time previously the publisher and owner of the "Irish Republic" newspaper in the city and county of New York was duly authorized by the officers or agents of the above