CARROLL v. DAVIS

CARROLL v. DAVIS. N. Y. Common Pleas ; General Term, November, 1879. Evidence.—Witness.—Examination of party.—Personal Transaction with Deceased.—Code of Civ. Pro. § 729. Testimony that, during the decedent’s lifetime, witness had examined the decedent’s account book (shown to have been lost) and that he saw there an entry in the handwriting of the deceased, is not testimony to a transaction between witness and the deceased, within the meaning of section 829 of the Code of Civil Procedure. Appeal by defendants from a judgment. - This action was brought by Howard Carroll against Lewis R. Davis and Mary Clark, as administrators of Hugh Clark, to recover for money loaned to or deposited with the decedent, and plaintiff’s case rested to a considerable extent on his own testimony. There was some question as to whether the decedent kept any account book; but notice to produce an alleged account book, was given, and the defendants replied that they had no such book, and never had it. Plaintiff testified to having seen an account book kept by the decedent, in the decedent’s possession during his lifetime, and, as secondary evidence of the contents of the book, offered his own testimony to an entry therein which he saw and read during the decedent’s lifetime, and which he testified was in the decedent’s own handwriting. The trial court admitted the evidence, and the jury rendered a verdict for the plaintiff. The defendants appealed from the judgment rendered thereon. Wm. H. Tovmley (Stewart & Townley, attorneys), for defendants, appellants. Wm. H. Arnoux (Arnoux, RitcTi & Woodfordr attorneys), for plaintiff, respondent. For the construction of this statute and the cases upon it, see Brague v. Lord, 2 Abb. New Cas. 1, 12; Miller v. Adkins, 9 Hun, 9; Somerville v. Crook, Id. 664; Head v. Teeter, 10 Id. 548; Howell v. Taylor, 11 Id. 214; Comins v. Hetfield, 12 Id. 375; Haughey v. Wright, Id. 179; Cornell v. Cornell, Id. 312; Hill v. Heermans, 17 Id. 470; Chadwick v. Fonner, 69 N. Y. 404, reversing 6 Hun, 543; Card v. Duryee, 66 N. Y. 651; Hildebrent v. Crawford, 65 N. Y. 107; aff’g 5 Lans. 502; Marsh v. Gilbert, 2 Redf. Surr. 465; Ross v. Harden, 42 Super. Ct. (J. & S.) 427. [MAJORITY — By the Court;—Larbemore, P. J.—[Orally.]] By the Court;—Larbemore, P. J.—[Orally.] We are unanimously of opinion, that this evidence is not testimony to a personal transaction or communication, within the meaning of the statute. Notice to produce the book of account was given, and it was not produced. The proper preliminary evidence was, in our opinion, given to entitle plaintiff to give secondary evidence of the contents of the book. The plaintiff’s own testimony to entries in the handwriting of the deceased—known to the witness to be his hand writing— which he saw in the book during the lifetime of the deceased, was competent secondary evidence of the entry. [Ruling on the weight of evidence is omitted.] Judgmént affirmed, with costs. Present—Larremore, P. J., and J. F. Daly and Van Hoesen, JJ.