#### Hyman Levinson, Doing Business Under the Firm Name and Style of Levon Mills, Respondent, *v.*Joseph Katz, Appellant.

(Supreme Court, Appellate Term,

February, 1912.)

Evidence — Books of account — Entries made by clerks, bookkeepers, and third persons.

The testimony of plaintiff’s bookkeeper that he kept a ledger) day-book, journal and cash-book and that he made entries of goods sold and delivered in the ledger is not sufficient to authorize the reception in evidence of plaintiff’s books of account in an action for goods sold and delivered not founded on special contract.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, first district, rendered in favor of the plaintiff.

Gettner, Simon & Asher (Herman Gettner, of counsel), for appellant.

Jacob W. Hartman, for respondent.

.Seabtjry, J.

This is an action to recover for goods sold and delivered. 'The answer is a general denial. To sustain the cause of action alleged, the court below permitted the plaintiff to offer his own books of account in evidence. A witness called by the plaintiff testified that he was employed by the plaintiff as bookkeeper and that he kept a ledger, day-book, journal and cash-book and. that he made entries of goods sold and delivered in the ledger. The witness was then requested to turn to the defendant’s account, and the book was offered in evidence against the defendant’s objection and exception.

' Ho sufficient foundation for the introduction of the plaintiff’s books of account was laid. The principle upon which a party’s account books are received in evidence is itself an exception to the general rule. The exception rests upon the *466supposed necessity for it and is only then allowed when circumstantial guarantees of trustworthiness. are observed. Wigmore, Ev., § 1536 *ei seq.*

In this State the conditions under which such evidence is received were early stated in the case of Vosburgh v. Thayer, 12 Johns. 461. The essential requirements which must be complied with, in order to admit such'books of account in evidence, are well stated by Professor Abbott in his note on the rule as to shop books in his Select Cases on Examining Witnesses (p. 538), He says: “ This rule, otherwise known as the rule in Vosburgh v. Thayer, 12 Johns. 461, as developed in practice and established by later cases, results as follows: In actions for goods sold and service rendered, not founded on special contract, the party’s books of account are admissible in evidence for the consideration of the jury, in his own favor, upon due preliminary proof: 1.— That they are his books of account kept in the regular course of business; 2 — that there was a course of dealing between the parties; 3 —- that some article or service charged was actually furnished ; 4 — that the party had no clerk or bookkeeper (unless it may be for merely writing up or posting charges originally made and completed in substance by the party); 5 — that he kept fair and- honest accounts.”

Measured by this standard it is evident that the preliminary proof offered by the plaintiff fell short of meeting the requirements of the rule, or of furnishing those guarantees of trustworthiness the observance of which is essential to prevent this exceptional rule from being used as a means of injustice.

Gebabd and Hotchkiss, JJ., concur.

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