#### SAMUEL H. PALMER, Plaintiff in Error, *v.*THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

Memorandum— *when a witness may use it and testify from it.*

Writ of Error to the Court of Sessions of Dutchess county to review the conviction and sentence of the plaintiff in error for forgery. The offence, as' charged, consisted in altering a real and genuine note, made by the plaintiff in error for $300, and dated November 8, 1877, to November 8, 1878. The note was made to the order of John C. Payne, and indorsed by him and. by one George W. Lamb. The claim made by those indorsers was, that they indorsed the note November 8, 1877, payable in two months, to take up another claim against the same parties, which was to mature that day. The amount of this claim was $480. The claim of the accused was, that the note alleged to have been, forged was given him long afterwards, with the date not filled up, to be used, as was customary, between the parties for any purpose that he saw fit in paying notes and claims in which all the parties were interested, and that he did pay, or secure, such a debt with one Dr. Stillman. Lamb, one of the indorsers, on his examination, testified as follows, as appears from the case :

Q. When did you indorse that note ? [Witness refers to a memorandum. If you have any memorandum you may use it to refresh your recollection.]

A. It refers to a payment. [The defendant objects to the witness referring to a memorandum, unless it was made at the time. Objection overruled, and defendants except.]

A. It was indorsed to take up a note of $480.

Q. When was that note indorsed ? [Same objection, ruling and exception.]

A. November 8, 1877.

Q. Who handed you this note when you indorsed it ?

A. Samuel H. Palmer.

Q. For what purpose did you indorse that note ?

*373A. To take up $480 note at Merchants’ Bank, in this city.

Q. When was that $480 note due; when did it fall due ?

. [Witness again refers to said paper. Same objection to referring to the memorandum. The defendant desires to cross-examine the witness in regard to that memorandum. Counsel for the People objects to that. Testimony allowed, and defendant excepts.]

A. It fell due the fifth of November. [Upon cross-examination the witness testified, that he could not testify to the dates without referring to this memorandum, and gives this ^further account of what this memorandum was.]

Q. Where is that record ?

A. Mr. Payne has got it.

Q. Have you got it ?

A. No, sir ; I don’t know ; I have it in my pocket home.

Q. Did you keep the record ?

A. No, sir ; I didn’t keep it at the time.

Q. Then you are swearing to the date of the note from the record kept by Mr. Payne ?

A. Yes ; he kept the record for me.

The court, at General Term, said : “We think it was improper -to permit the witness to testily from this memorandum. A memorandum may be read in evidence, if made at the time and by the witness who made them. *(Halsey*v. *Sinsebaugh,*15 N. Y., 487.) It is competent to read an entry made by a witness, or a witness may use one made by another, if he can testify then from recollection the fact to which the entry relates; he cannot refer to an entry not original, or to one not made at or near the time. *(Marcly*v. *Shulls,*29 N. Y., 346; *Guy*v. *Mead,*22 id., 462; *Russell*v. *Hudson Biver B. B.,*17 id., 134; *Odell*v. *Montross,*88 id., 499.) The fact that the memorandum was made by the witness should be proven with a degree of certainty which leaves no room for doubt. *(Gilchrist*v. *Broolclyn Grocers' Association,*59 N. Y., 499.) The same case holds, that it is improper to speak from a memorandum, whether it was formally offered in evidence or not. if its competency was challenged and the witness was permitted to testify from an improper memorandum.

“The conviction should be reversed and a new trial granted in the Sessions, to which court the proceedings are remitted.”

*374
      *Dan. W. Guernsey*and *John Hackett,*for the plaintiff in error..

*William It. Woodin,*district attorney, and *W. I. Thom,*for' the People.

Opinion by

Barnard, P. J.

Present — Barnard, P. J., Dykman and Pratt; JJ.

Conviction reversed, and case remitted to Sessions.