Peck v. Valentine, 94 N. Y., 569. PECK v. VALENTINE. New York Court of Appeals, 1884. [Reported in 94 N. Y., 569.] An original memorandum made by a witness can be used to refresh his recollection; or, if he has forgotten the facts stated and cannot on seeing the memorandum recall them, yet if he states that it was a true statement of a transaction known to him at the time, it may be read in evidence in connection with and as auxiliary to his testimony. But secondary evidence of the contents of such memorandum is inadmissible, even after proof of its loss, being mere hearsay. Action against an agent, for alleged embezzlement of moneys received on sales. For the purpose of proving the defendant's failure to enter in the cash-book all moneys received by him on sales, one Leggett was called as a witness who testified that he was employed in plaintiff's lumber yard in July, 1879, aud kept on a loose piece of paper an account of moneys received by the defendant from sales of lumber from the 1st to the 18th of that month; that the entries were made each day, continuously, except Sunday, and were correct; that he gave the paper to the plaintiff, and that the defendant never saw it. The plaintiff testified that he received the memorandum from Leggett, and had lost it; but that he copied the figures correctly into a memorandum-book (which he produced), and that the entries had not been altered. The entries in the memorandumbook were then offered and received in evidence, under the defendant's objection. Judgment was entered for the plaintiff upon the report of a referee. The Supreme Court at General Term affirmed the judgment; being of opinion that what the witness Leggett was unable to remember himself, the plaintiff could prove by other witnesses. The witness, Leggett, gave to the plaintiff this memorandum and he transcribed it. This copy was admissible as proof of the lost paper, and that paper thus reproduced was part of the Peck v. Valentine, 94 N. Y., 569. evidence of the witness Leggett. It was therefore direct, positive, and if credited, conclusive proof of the fact that the defendant received one sum of money belonging to plaintiff and returned a less sum. The Court of Appeals reversed the judgment. ANDREWS, J. [after stating the facts]: We think the entries were not competent evidence. The original memorandum, if it had been produced, could have been used by Leggett to refresh his recollection; or if he had forgotten the facts stated, and could not on seeing the memorandum recall them, yet if he had been able to state that it was a true statement of the transactions, known to him at the time, it could have been read in evidence in connection with, and as auxiliary to his testimony. (Guy v. Mead, 22 N. Y., 462.) But the adverse party, on production by the witness of the memorandum, would have had the right of inspection and cross-examination, a right of great importance as a protection against fabricated evidence. (Stephens on Evidence, art. 136; Cowen, J., Merrill v. Ithaca, etc., R. R. Co., 16 Wend., 600.) In this case the memorandum was not produced and Leggett was not sworn as to its contents, for the reason doubtless that he could not remember what it contained. The only evidence to connect the entries in the plaintiff's book with the original memorandum, or to establish the amount of money received by the defendant during the time stated, was the oath of the plaintiff that the entries were a true transcript from the memorandum in connection with the testimony of Leggett that the memorandum was a true statement of the transactions at the time. The original memorandum was the mere declaration of Leggett in writing of certain facts observed by him. The case is not distinguishable in principle from what it would have been if there had been no memorandum and the plaintiff had been permitted to prove the oral representations of Leggett to him of the same facts. This would be mere hearsay, and the fact that the statement instead of being oral was written does not alter the character of the evidence. A similar question was presented in Clute v. Small (17 Wend., 238). The plaintiff in that case sought to prove an admission of the defendant made to the Peck v. Valentine, 94 N. Y., 569. sheriff at the time of the service of the writ, and was permitted to prove the contents of a letter written by the sheriff to the plaintiff's attorneys on returning the process, in which he reported the admission made by the defendant. The letter was lost and the sheriff testified that he could not recollect the contents of the letter or what the defendant had said, but that what he wrote was undoubtedly as stated by the defendant. The evidence of the sheriff was held to be inadmissible, Cowen, J., saying: "There was only one of two ways in which he could be allowed to speak, that is, either from positive recollection or from seeing the letter and knowing it to be his own statement." And again: "The inquiry here was no more than the common one to a witness; would you have asserted such a matter unless it had been true? and on obtaining the witness' affirmative answer, going on to prove what he did say." The substantive fact sought to be proved in this case was the receipt by defendant of moneys for which he had not accounted. It could be proved by any competent common law evidence. But the original memorandum of Leggett was not original or primary evidence to charge the defendant. It was not a writing inter partes, nor one creating rights or of which rights could be predicated, as a will, contract or deed; nor was it a record of transactions in the ordinary course of business, as books of account, nor a paper made by the defendant, or to which he was in any way privy. It was apparently a private statement of an exceptional transaction, made by an agent in aid of his memory, for the information of his principal. The facts stated were relevant and could be proved by any one who could testify to their existence, either directly as matter of personal recollection, or from a memorandum made by him, which he could verify as true. The entries in the plaintiff's book were not authenticated by Leggett. Whether they were a correct transcript of his original memorandum depended solely upon the plaintiff's evidence. The original memorandum was not a writing the contents of which, if lost, could be proved by secondary evidence. The rule upon that subject relates to writings which are in their nature original evidence, and in case of loss, their contents are from necessity allowed to be proved Guy v. Mead, 22 N. Y., 462. by parol. We think the admission of the entries from the plaintiff's book was not justified by any rule heretofore established and to extend the rule so as to admit a copy of a memorandum not in its nature original evidence of the facts. recorded and not verified by the party who made the original and knew the facts, would open the door to mistake, uncertainty and fraud, a consequence far more serious than would flow from a restriction which in a particular instance might seem to prevent the ascertainment of truth. For the error in admitting the entries the judgment should be reversed and a new trial ordered. All concur. GUY v. MEAD. New York Court of Appeals, 1860. [Reported in 22 N. Y., 462.] A memorandum is competent, which the maker swears was made at or about the time when the event or transaction mentioned in it took place, and that he knows it was correct when made, but has no recollection of the fact. It is not necessary that such memorandum be made in the course of business. This principle applies even where the memorandum is used to show negatively that something not noted did not exist. Plaintiff sued as transferee after maturity of a promissory note for $250, made by defendant, to George Sharts, or bearer. The note had two endorsements of payments, as follows: "$90.00. Received on the within note ninety dollars, January 20th, 1846. $40.00 Received on the within note February, 26th, forty dollars, 1849." The defence was payment. On the trial, plaintiff gave evidence that the $40 was paid at the date of the endorsement, February, 1849, while the defendant gave evidence that it was paid in February, 1847, and not in 1849. Guy v. Mead, 22 N. Y., 462. The plaintiff for the purpose of showing that it was not endorsed at the time claimed by the defendant, called one Ingersoll as a witness, who testified, on direct examination that he saw the note on April 1st 1848; that it then had but one endorsement; that he cast the interest on the note for George Sharts, and that he had "the cast" before him on the original paper while testifying. The paper contained a statement of the first endorsement of $90, January 20th, 1846, and the interest up to April 1st, 1848. Upon cross-examination he said "independent of the writing I have no recollection of the time when said cast of interest was made; but from an examination thereof I have no doubt the statement therein is accurate, and the $40 endorsement was not on the note when said computation was made." Plaintiff offered to read the paper in evidence to sustain his position that the endorsement of the $40 was not on the note in 1848. Defendant objected; objection sustained; evidence excluded and plaintiff excepted. The Supreme Court at General Term directed judgment for defendant on the verdict, the majority of the judges being of opinion that a memorandum to be received in evidence of a fact, instead of the recollection of the witness, who made it, must show the existence of the fact sought to be established. The Court of Appeals reversed the judgment. DENIO, J. Formerly, I think, it was the doctrine of the courts of this State that such a paper could not be given in evidence as an independent piece of testimony. The rule was, that it might be referred to by a witness, to refresh his memory, but he must then swear to the truth of the facts, or his statement would not be evidence. (Lawrence v. Barker, 5 Wend., 301.) The doctrine was so stated by the Chancellor, in the Court of Errors, in Feeter v. Heath (11 Wend., 485). But the subject has been re-examined since these cases were decided, and a different rule now prevails. In Merrill v. The Ithaca and Owego Railroad Company (16 Wend., 599), Judge CowEN examined the cases upon this rule of evidence at great length, and |