#### Claude Cole, Respondent, *v.*Max Canno and Abe Canno, Copartners, Trading as Canno Bros., or Canno’s Dairy, Appellants.

Third Department,

May 28, 1915.

Evidence—contents of letter — parol evidence — insufficient proof of loss or inability to produce letter.

Where, in an action to recover for services alleged to have been performed by the plaintiff, the right to recover was dependent upon his employment by the defendants, alleged to have been made through them *179agent, and proof of the contents of a letter received by the agent from the defendants authorizing him to hire the plaintiff was necessary in order to sustain the alleged cause of action, it was reversible error to allow parol evidence of the contents of the letter without sufficient proof that it was lost or could not be produced.

Kellogg and Howard, JJ., dissented, with memorandum.

Appeal by the defendants, Max Canno and another, from a judgment of the County Court of Sullivan county in favor of the plaintiff, entered in the office of the clerk of said county on the 18th day of February, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of February, 1914, denying defendants’ motion for a new trial made upon the minutes.

*Arthur C. Kyle [Ellsworth Baker*of counsel], for the appellants.

*John D. Lyons,*for the respondent.

Lyon, J.:

The complaint alleges that in the month of February, 1912, the defendants procured one Margolin to employ the plaintiff to make pot cheese from that date until December 1, 1912, for which service it was agreed by the defendants, through their said agent Margolin, that the plaintiff was to receive three cents per can for all milk made into cheese. To such allegation the defendants interposed a general denial. The right of the plaintiff to recover was dependent upon his employment by the defendants. A vital issue, therefore, was the authority of Margolin to bind the defendants by a contract with plaintiff for the performance of such service. In order to establish such authority the plaintiff called Margolin as a witness. To the question of plaintiff’s attorney inquiring for whom the witness hired the plaintiff the defendants interposed the objection that the question was improper and incompetent at this time, no authority having been shown as yet. The record subsequent to the objection is as follows:

*“*The Court: If they fail to show that they had any authority I will sustain the objection. Q. Who told you to hire him ?- A. Canno. [Cross-examination by defendants’attorney]: Q. Did you have a talk with Canno about it ? A. I did not go there— *180Q.— about hiring Cole, before you hired him ? A. I had a letter from him. Q. That is the only communication you had from Canno before you hired him? A. Yes. [Defendants’ Attorney]: I ask that the testimony be stricken out on the ground that the writing itself is the best evidence. The Court: I deny the motion. Exception. Q. Did you while you were there pay Claude Cole for some of the work that he did, and with whose money ? A. With Oanno’s money. [Defendants’ Attorney]: I renew my motion to strike out the testimony in which he says that he received instructions from Canno, on the ground that it appears that those instructions that he received were in writing in the form of a letter and the writing or letter itself is the best evidence. The Court: I will grant the motion if they can show that that letter is still in existence. [Re-Direct Examination by plaintiff’s attorney]: Q. What did you do with the letter ? A. I did not save the letter, I had them a couple of years—• Q. You haven’t seen the letter since you received it? A. No, sir. The Court: Have you made any search for that letter for this court ? A. No. [Re-Cross Examination by Defendants’ Attorney]: Q. Were you requested by Mr. Lyons [plaintiff’s attorney] to make any search for that letter ? A. No, sir. Q. Any subpoena served on you ? A. No, sir. Q. You haven’t looked for it? A. No, sir. Q. You don’t know whether it is over at your home, that you do not know ? A. No, I know I haven’t it. Q. Whether the letter is over there, you don’t know anything about that ? A. I know I haven’t got that letter. Q. Do you know whether it is over there where you lived ? A. I left all these papers in Beech Ridge. Q. You don’t know whether it is there at Beech Ridge or not? A. No, sir. Q. You haven’t been asked by Mr. Lyons or Mr. Cole about that letter since that timé until you have been put on the witness stand ? A. No. [Defendants’ Counsel]: I renew my motion. The Court: I will deny the motion. Exception.”

This testimony of Margolin, so far as it is claimed to establish the non-existence of the letter, is most unsatisfactory. The period of two years during which he said he had them, did not expire as to the letter until more than a year after the first trial, nor until about the time of the second trial. When Mar*181golin testified in answer to the question, *“You*don’t know whether it is over at your home ? * * ** No, I*know I haven’t it,” he evidently referred to his home at the time of the trial, which appears to have been at Youngsville, because when later questioned as to whether the letter was at Beech Bidge he said he did not know. Although the evidence indicates that the defendant was operating the Beech Bidge creamery in the summer of 1914, there is nothing in the record indicating, or giving the right to infer, that when Margolin lived at Beech Bidge the creamery there was being operated by the defendants, or that the place in which he lived and where the letter was left, was the creamery building, or that the letter, if still at the place where Margolin lived at Beech Bidge, is in the possession or under the control of the defendants, as has been suggested. It has been argued that the evidence establishes the ratification by defendants of the hiring of plaintiff by Margolin.

The plaintiff testified that one of the defendants was at the Pulton creamery at various times prior to the first day of July and at times talked with plaintiff and told him how he wanted the cheese made, and that the payment of plaintiff for services rendered was made by defendant by its check for his March, April and May services. The latter two checks which were offered in evidence by the plaintiff were made by the defendant Oanno Dairy, payable to the order of A. P. Pulton and bore the following indorsement: *“*Pay to the order of 0. Cole, employee of Oanno Dairy Co. A. P. Fulton, 0. Cole,” indicating that as early as May tenth a misunderstanding existed as to whether Pulton or the defendants were the employers of the plaintiff. After July first the defendants sent no cans in which to pack and ship the cheese, and, hence, the plaintiff ceased making cheese, and from that time until December first, a period of five months, the sole duty performed by the plaintiff for the defendants and which represents approximately five-sixths of his claim, consisted in going daily to the Fulton creamery, pulling the plug from the defendants’ vat, thus allowing the skimmed milk which Pulton had run into the vat the preceding day to run out, washing the vat, returning the plug, and going back home. While it is claimed to be a question of *182fact under the evidence whether the defendants ratified the employment of plaintiff by Margolin, there is no evidence aside from the declaration of Margolin that the hiring was for a period terminating December first, or that either of the defendants was at the Fulton creamery subsequent to July first, or at any time ratified the hiring with knowledge of the alleged length of the term. In fact Margolin does not testify that the letter authorized him to hire the plaintiff for any length of time. The testimony of Margolin as to the contents of the letter was necessary in order to sustain plaintiff’s alleged cause of action, and we think that such testimony, in the absence of proof as to the loss of the letter, was improperly admitted.

The defendants were entitled to insist that every reasonable effort for the discovery or production of the letter, without success, had been exhausted before parol evidence of its contents was admitted. Margolin was an interested witness to the extent at least of justifying his action in employing plaintiff, and avoiding liability to plaintiff for assuming the authority to employ plaintiff in case he did not have it; and the defendants were entitled to have the letter produced if it could be done by a search through the witness’ papers left at Beech Ridge. Secondary evidence as to the contents of the letter was only admissible when such was the best evidence attainable after reasonable effort to obtain the original had been exhausted. For aught that appeared, the letter was still at Margolin’s former residence. It was there when last seen, and that was the place where search should naturally first be made for it. In the absence of all proof indicating its loss, or destruction, and of the conditions under which it was left at Beech Ridge, which may have been of a character which insured its preservation, rather than its loss, it may still be presumed to be there.

This was the second trial of the case, the first having been had in Justice Court in January, 1913, and presumably the plaintiff was aware upon the trial in County Court in February, 1914, of the importance of the evidence claimed to be afforded by the letter. “ The general rule is that the party alleging the loss of a material paper, where such proof is necessary for the purpose of giving secondary evidence of its contents, must show that he has in good faith exhausted, to a reasonable *183degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him. *[Simpson*v. *Dall,*3 Wall, 460, 475.)” *[Kearney*v. *Mayor, etc.,*92 N. Y. 617, 621.)

In the case of *Dishaw*v. *Wadleigh*(15 App. Div. 205, 211) the witness testified: “I can’t tell where the letter is; don’t know where it is; don’t think I could find it. I think it has been destroyed, but I am not sure. * "* * I have not been asked to produce those letters here. I have destroyed some of the letters, and some I have not.” The court, in its opinion reversing the judgment, said: “ This evidence does not show that any effort whatever was made to produce the letters, or ascertain that they could not be found. I think it was error to receive such evidence, and error not to have stricken it out upon the defendant’s motion. *[Kearney*v. *Mayor,*92 N. Y. 617.) The evidence gave color to the transaction in controversy, and was well calculated to influence the jury, and for such error the judgment and order should be reversed and a new trial granted.”

It would certainly be establishing a dangerous precedent to permit a writing vital to the maintenance of a cause of action to be established by parol until some satisfactory proof of its loss or of inability to produce it had been made, or at least some effort to ascertain whether the writing were still in existence.

For the reasons stated, the judgment and order appealed from should be reversed, with costs to the appellants to abide the result.

All concurred, except Kellogg, J., who dissented in memorandum, in which Howard, J., concurred.

Kellogg, J. (dissenting):

Plaintiff was employed in February, 1912. The trial was in February, 1914. Margolin concededly was in the employ of the defendants making cheese at the Fulton factory. He taught the plaintiff how to make cheese and employed him as defendants’ cheese maker in his place. At the factory the skimmed milk was run into the defendants’ vats and plaintiff made cheese from it, which defendants marketed. The plaintiff acted as defendants’ cheese maker from February until July first and was recognized by them as their employee. Each *184month they sent a check for the amount of his wages to the order of Fulton and diiected him to turn it over to the plaintiff, which he did. They directed him in their work.

A reversal of the judgment in favor of the plaintiff is urged upon the ground that it does not appear that Margolin had authority to employ the plaintiff. Margolin swears that the defendants wrote him authorizing the employment; that he had not seen the letter since he received it two years before; that he did not save it; that he was now living at Youngsville; that he knew he had not the letter and that it was not at his residence; that when he left Beech Ridge he left all “ these papers ” there. He does not know whether the letter is there or not. It is improbable that papers left at his former residence two years before were in existence or were available for production. If we infer that at Beech Ridge he was in the employ of the defendants and left there “these papers ” relating to the employment, the letter, if inexistence, is with the defendants and not with the witness. I think the letter was sufficiently accounted for and that it was competent for Margolin to swear that he was authorized to make the employment. If Margolin had not original authority, the defendants have ratified the employment. At least there is enough evidence of the employment *prima facie*to put the defendants to proof. I favor an affirmance.

Howard, J., concurred.

Judgment and order reversed and new trial granted, with costs to appellants to abide event.