FOURTH DEPARTMENT, JUNE TERM, 1898. [Vol. 31. The learned counsel for the defendant makes the point that the plank was not upon the sidewalk, but upon the adjoining premises of Mr. Braman, and, therefore, the defendant is not liable. The sidewalk is a part of the street and the defendant's answer admits that the plaintiff fell on said street on the 11th day of March, 1897. But independent of this admission, if the defendant had so occupied the sidewalk as to force this plank upon the adjoining premises, thus inviting the public to use it in the place of the sidewalk he had obstructed, and if the accident had occurred in consequence of not keeping it properly guarded, the defendant cannot escape liability by the bare fact of a portion of the plank being a little off of the east edge of the sidewalk. The remaining question is whether the evidence disclosed that the plaintiff was guilty of contributory negligence as a matter of law. We think that question was for the jury. It will be seen from the above statement of facts that the only apparently safe way of passing along this walk at the time of the accident was over this plank; that it appeared safe; the unsafe condition from the stones under it was not known to the plaintiff until the accident occurred; the necessities of her employment called her that way on that occasion and she had a right to use that portion of tlie sidewalk which the defendant had permitted; that is to say, she had the right to have that question submitted to the jury. We express no opinion upon the facts as we do not desire to prejudice the defendant's case upon another trial. It is true that the upturned condition of the street and sidewalk was apparent to the plaintiff and she should have exercised due care with reference to that condition. The question is: Did she do so? And that question was for the jury. Bullock v. Mayor, etc., of City of New York (99 N. Y. 654) is a strong authority to sustain the plaintiff's contention in this respect. In that case the flagging on the sidewalk was broken up by a contractor, the street became muddy, and persons using the walk had thrown down pieces of flagging to step upon. The plaintiff was injured while passing along this broken place, and the court says: "The plaintiff had the right to use this walk although she knew its condition, and whether she was guilty of any carelessness which contributed to the accident was also a question for the jury.” And we may profitably consult upon this subject Walsh v. App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. City of Buffalo (17 App. Div. 112); Stone v. City of Poughkeepsie (15 id. 582); Evans v. City of Utica (69 N. Y. 166); Gillespie v. City of Newburgh (54 id. 468). These views lead to the conclusion that the plaintiff's exceptions should be sustained and a new trial granted, with costs to the plaintiff to abide the event. All concurred. Plaintiff's exceptions sustained and motion for a new trial granted, with costs to the plaintiff to abide the event. CHAUNCEY N. SHIPMAN and Others, Respondents, v. PATRICK GLYNN and MARY ANN GLYNN, Appellants. Evidence-when books of account are not competent evidence of goods sold. The books of accounting of wholesale coal dealers contained charges for coal sold and delivered to, and credits of payment made on account thereof by, a customer, the business having been transacted by the transmission of the customer's orders by the coal dealers to the mines in Pennsylvania, from which the customer had been furnished directly with coal, which never had come into the possession of, nor had been seen by, the dealers or their agents or bookkeepers, their knowledge on the subject having been obtained from notice sent by the mine owner of the shipment, the car number, weight and size of the coal, from which the dealers would invoice and would send to the customer a copy of such invoice from their books, which were made up by three different bookkeepers. Held, that although proof was offered of the correctness of such books by two witnesses who had dealt with the wholesale dealers and settled with the dealers to some extent upon them, the books were not competent evidence in an action brought by the coal dealers to recover the value of the coal thus consigned to their customer. APPEAL by the defendants, Patrick Glynn and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Niagara on the 4th day of November, 1896, upon the report of a referee. This action was brought to foreclose a bond and mortgage which FOURTH DEPARTMENT, JUNE TERM, 1898. [Vol. 31. the defendants had executed to the plaintiffs to secure a claim of $2,500, and which were accompanied by a written agreement that said mortgage was to be a collateral security for an outstanding indebtedness of the firm of Glynn & McDonald, that the plaintiffs were to continue to ship coal to Patrick Glynn individually as their agent, and that he should apply all proceeds thereof to the extinguishment of said indebtedness. The property mortgaged was situate in Niagara Falls, N. Y. The defendants answered, alleging that the bond and mortgage were obtained by the plaintiffs by means of threats of arresting Patrick Glynn and imprisoning him for larceny. The defendant Mary Ann Glynn is his wife. The answer also alleged payment and a counterclaim. The referee found that there was due on the bond and mortgage at the time of his report $1,603.53, and awarded costs to the plaintiffs, and directed that judgment of foreclosure and sale of the mortgaged premises be entered. P. F. King, for the appellants. S. J. Lawrence, for the respondents. WARD J.: For several years prior to December 2, 1890, Charles Glynn, a son of the defendants, and one McDonald, as copartners, were carrying on a retail coal business at the city of Niagara Falls. At that date Charles Glynn died, and his interest in the copartnership was assumed by Patrick Glynn, and the business was continued by Patrick and McDonald until on or about the 10th of November, 1891, when the partnership was dissolved. The plaintiffs were wholesale coal dealers, transacting their business at Buffalo, N. Y. They supplied coal to the Niagara Falls concern until the tenth of November aforesaid, when the plaintiff Shipman went to Niagara Falls, saw the defendants and insisted upon their executing a bond and mortgage to secure the plaintiffs for $2,500 for coal sold and delivered to the concern. The defendants testified that they executed the bond and mortgage because of threats made by the plaintiff Shipman to have Patrick arrested for larceny unless they did so. This was denied by Shipman and by his attorney who was present App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. when the threats were claimed to have been made, and the referee has found with the plaintiffs upon this question, which we regard as conclusive. The chief controversy was over the defense of payment of this bond and mortgage. The evidence of the defendants tended to show full payment; the plaintiffs' evidence tended to support the opposite conclusion. The appeal presents questions of fact in which the defendants insist that the preponderance of evidence was so decidedly with them that this court should reverse the judgment; especially do they insist that five notes that were afterwards given by the defendants for an amount which the defendants claim was due upon the bond and mortgage, and for the same debt, were paid by them before the commencement of the action. There is some force in this conten tion, but the plaintiff Shipman gave testimony disproving the payment of these notes, and, as we have reached the conclusion that we must grant a new trial upon exceptions taken to the admission of evidence, we will not discuss the questions of fact further. Numerous exceptions were taken by the defendants' counsel to the reception of evidence against them upon the trial, which are also urged upon this review, and which we have carefully examined, but we do not find that any of them present reversible error except those which relate to the admission of the plaintiffs' books of account, which contained the plaintiffs' charges for coal sold and delivered and credits of payment thereon. Before the books were offered in evidence the plaintiffs proved by two witnesses, who had dealt with the plaintiffs and settled with them to some extent upon these books, that they kept honest books. It was also shown that a portion of the coal charged upon these books had been delivered to the defendant Patrick Glynn, who carried on the coal business after the dissolution of the partnership of McDonald & Glynn, from railroad cars that had brought the coal from where it had been mined in Pennsylvania. The only other evidence given by the plaintiffs. preliminary to offering the books in evidence, was that of the plaintiff Shipman. He presented at the trial two books, one of which he called a "ledger" and the other an "invoice book." The plaintiff Shipman testified that the invoice book was a book of original entry; that the defendants' account on this book showed shipments FOURTH DEPARTMENT, JUNE TERM, 1898. [Vol. 31. of coal until July 10, 1892. The mode of making up the books was as follows: On receiving an order for the coal from Glynn & McDonald, or from the defendant Patrick Glynn, the plaintiffs would send the order to the mines in Pennsylvania, with a request to the mine owners to fill the order, and, when the order was filled, the mine owner would send notice to the plaintiffs in Buffalo of the shipment, the car number, weight and size of the coal, and the name of the consignee. From that the plaintiffs would invoice and take a a copy of that invoice from these books and send it to the consignee and then post the account from the invoice book to the ledger and send a bill thereof with every carload to the consignees. The coal, in fact, never came into the possession of, nor was seen by, the plaintiffs or any of their agents or bookkeepers. The price of the coal was fixed by the plaintiffs themselves; and the books in question contained, in addition to what has been stated, the price of the coal as charged and cash entries of payments, and also entries of notes given and paid by the defendants. He testified that the books were made up by three different bookkeepers, two of whom were ladies who had left the plaintiffs' employment before the action was tried and their whereabouts were unknown to the plaintiffs. The other was a man who was also absent and whose place of residence, if living, was unknown. Shipman testified that he had heard that the man was dead. None of these bookkeepers were produced upon the trial as witnesses nor was it shown that either of the ladies was dead or without the jurisdiction of the court, or that any attempt had been made to procure any of these bookkeepers upon the trial. The plaintiff Shipman also testified as to his conclusion that he knew when these entries were being made and that they were correct. On his cross-examination this plaintiff stated: "I did not write up the books. I know in whose handwriting this account was kept. It was kept at the city of Buffalo, all of it, and the coal kept by the books was never inspected by the bookkeeper. The shippers at the mines sent us communications from the mines. from which we made our invoices. Personally I know nothing about the correctness of the coal and cars except from the invoices. The parties shipping the coal are not in my employ. They belong to another company and no person in my employ had anything to do with the shipping of the coal.” |