#### Milan H. Ross, as Administrator, etc., of William D. Wilder, Deceased, Respondent, *v.*Margaret McCarthy, Appellant.

Third Department,

May 5, 1915.

Evidence — best evidence — as to contents of telegram — as to payment of check—trial — prejudicial charge as to absence of witness.

Where, in an action upon an alleged loan by the plaintiff to the defendant • for which the former took no written obligation, the defendant denied borrowing the money and claimed that the loan was made by the plaintiff to P. to enable her to pay the defendant the amount thereof upon a mortgage, and the plaintiff testified that he sent a check to the defendant upon receipt of a telegram from her asking for money, it was erroneous to allow the plaintiff to testify to the contents of such telegram, in the absence of even a claim that it had been lost or destroyed.

The plaintiff was also allowed to testify that the cheek was afterward paid through the bank over objection that it was not the best evidence.

The court also excluded testimony offered by the defendant to the effect that the plaintiff was credited at a factory with milk from the farm of P. It was prejudicial to the defendant for the court to charge that the jury had the right to assume from the absence of P. that if she had been present she would have given testimony adverse to the defendant.

Under the above circumstances, a judgment in favor of the plaintiff should be reversed and a new trial granted.

Appeal by the defendant, Margaret McCarthy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 9th day of June, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on or about the same date denying the defendant’s motion for a new trial made upon the minutes.

*W. J. Saunders,*for the appellant.

*George H. Bowers [Ledyard P. Hale*of counsel], for the respondent.

Lyon, J.:

There are two causes of action stated in the complaint. The first is upon a note of sixteen dollars made in November, 1903, ten years before the commencement of the action, payable to one Bucklin or bearer, one day after date with use, which note *534plaintiff claims to have taken of Bucklin at the time of its execution, crediting him therefor on his store bill, and to have transferred to himself as administrator of the Wilder estate, just prior to bringing this action in December, 1913. The plaintiff claims that one dollar was paid upon the note in September, 1909, saving it from the operation of the Statute of Limitations. This the defendant denies.

The second cause of action is upon an alleged loan of $100 by plaintiff as such administrator to defendant in February, 1910, for which the plaintiff took no written obligation. The defendant denies borrowing the money, and claims that the loan was in fact made by the plaintiff to Mrs. Pharisee to enable her to pay the defendant $100 upon the, mortgage which the defendant held upon Mrs. Pharisee’s property, which property was formerly owned by the plaintiff and upon which he then held the first mortgage.

The jury found in favor of the plaintiff for the full amount demanded, and from the judgment entered thereon, and the denial of defendant’s motion for a new trial upon the minutes, this appeal has been taken.

Regarding the loan of $100, the plaintiff’s testimony is that about January 1, 1910, at his store, the defendant stated that she was staying with a sick daughter at Auburn, hi. Y., and wanted to know if the plaintiff could send her some money' in case the girl were taken worse, which the plaintiff told her he would do if he had it; that on the 8th day of February, 1910, he received a telegram from the defendant saying “that the girl was just alive and wanted me to send — asked me if I could send her $100. I immediately replied that I would send the $100 by return mail, which I did; ” that he sent her a check of the Wilder estate payable to her order.

Objection was seasonably made to plaintiff’s testifying to the contents of the telegram as not the best evidence. The objection was overruled, to which the defendant excepted. The defendant testified that she sent no telegram to the plaintiff asking for the money, but that the plaintiff sent a check to her without even writing her, and that it was sent pursuant to the understanding between the plaintiff, the defendant and Mrs. Pharisee, as loaned by the plaintiff to Mrs. Pharisee, to be *535applied by defendant as a payment upon the mortgage held by defendant against Mrs. Pharisee. The reception of the testimony as to the contents of telegram in absence even of the claim that the telegram had been lost or destroyed or was not in fact at the time in the possession of the plaintiff, was clearly erroneous and in my j ndgment very .harmful to the defendant. It strongly tended to support the plaintiff’s contention that the loan was made by him to the defendant and not to Mrs. Pharisee, and this was the crucial question in the case. The defendant also took objection and exception to the testimony of the plaintiff that the check was afterward paid through the bank, upon the ground that such testimony was not the best evidence, and that the check itself showed what the fact was. The plaintiff did not at any time produce the check.

The court also excluded the testimony offered by the defendant to the effect that the plaintiff was credited with the Ida Pharisee milk at the factory confirmatory of defendant’s claim that the money was loaned to Mrs. Pharisee and in connection with the question as to whether he told defendant that he could get his pay from the milk as proving that plaintiff had received the whole or a portion of the $100 therefrom.

In the charge the court commented upon the absence as a witness of Mrs. Pharisee, who was the sister-in-law of the defendant, and at the close of the charge, plaintiff’s attorney requested, “I ask your honor to charge the jury that it has the right to assume, from the absence of Mrs. Pharisee, that if she were present she would give testimony adverse to the defendant.” The court: “ I so charge,” to which the defendant excepted.

I think that the correctness of this ruling is very questionable. The court’s statement was certainly prejudicial. It appears from the evidence that Mrs. Pharisee was subpoenaed by defendant as a witness, and was in court the preceding Monday, and that she was given an attendance fee of fifty cents, and that while she said she could not come back, this defendant thought she was compelled to come back.

Very likely Mrs. Pharisee was not particularly friendly to the defendant, who had foreclosed the mortgage against her, and was not anxious to relieve the defendant of liability for *536the payment of the $100, especially by testifying that the witness herself was liable for its payment.

It is evident from the testimony sought to be introduced by the attorneys, and from the rulings and remarks of the court upon the trial, that a clear understanding of the issues did not exist until the trial had w.ell progressed, which upon the whole we think was prejudicial to the defendant.

The claims of each party are now understood and a retrial will probably result in an intelligent and just verdict.

The judgment and order should be reversed and a new. trial granted, with costs to the appellant to abide the event.

All concurred.

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