#### ATWOOD et al. v. BARNEY.

(Supreme Court, General Term, Fourth Department.

July, 1894.)

1. Evidence—Books of Account—Preliminary Proof.

Testimony of witnesses that they had dealt with plaintiffs, and had settled from plaintiffs’ books of account, which they found to be correct, *811is sufficient evidence that the books were fairly and honestly kept to-authorize their admission in evidence.

2. Same—Books Kept by Clerk.

Plaintiffs’ books of account will not be excluded on the ground that plaintiffs kept a clerk during' the time of the dealings which were the subject of the action, where plaintiffs testify that, during such time, they did not keep a regular clerk, but sometimes employed persons to help them for a few days or months, and also employed persons to assist temporarily in posting the books, and that the book entries by others than plaintiffs were made under their supervision, in their presence, and at their suggestion, though they state on cross-examination that they cannot say that they were always present when the charges in the books were made, or that they saw or gave directions as to every charge.

Appeal from judgment on report of referee.

Action by Montraville W. Atwood and James L. Atwood against Martin Barney. There was a judgment in favor of plaintiffs, and defendant appeals.

Modified.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

George E. Morse, for appellant.

Wayland F. Ford, for respondents.

MARTIN, J.

Practically, the only question which arises upon this appeal is whether the plaintiffs’ books of account were properly admitted in evidence. The plaintiffs were hardware merchants doing business at Clayton, Jefferson county, N. Y. The books admitted in evidence were the books of account kept by them in the regular course of their business. The appellant contends that the referee erred in admitting these books—First, because the plaintiffs kept a clerk during the time of the dealing between the parties; and, second, because there was no proper proof that the plaintiffs kept fair and honest accounts. Several witnesses were called, who testified that they had dealt with the plaintiffs, settled from their books, and that they found them to be correct. We think this was sufficient evidence that the books were fairly and honestly kept. The plaintiffs’ testimony was to the effect that during the time this account was running they had no regular clerk, but that they sometimes employed persons to help them about the store for a few' days or months, also employed persons to assist them temporarily in posting their books, and that the entries made on their books by others were made under their supervision, in their presence, and at their suggestion. On cross-examination the plaintiffs testified that they could not swear they were always present when the charges on their books were made, or that they saw or gave directions as to every charge. The witnesses Marshall and Sumner both testified that the work they did was correctly done, and that when goods were sold or charged by them the sales were correctly reported to the plaintiffs, or correctly entered upon the plaintiffs^ books. A fair construction of this evidence leads to the conclusion that the entries were made under the general supervision of the plaintiffs, with their knowledge, usually in their presence, at their suggestion, and that those made by Marshall and Sumner were correct. Under these circumstances, can it be held that the plaintiffs’' *812books were inadmissible? In Sickles v. Mather, 20 Wend. 72, where the plaintiff had in his employ a foreman, who delivered the goods sold by the plaintiff to the defendant, and who kept a slate at the factory, on which he made a memorandum of the goods delivered, from which the plaintiff made Ms entries on a daybook, it was held that he was not in any sense a clerk, for the purpose of verifying the books, and hence not within the doctrine of the case of Vosburgh v. Thayer, 12 Johns. 462, which is the leading case in this •state on the question of the admission of books of account in evidence, and which holds that wThere there are regular dealings between the parties, and it is proved that the plaintiff keeps honest and fair books of account, that some of the articles charged to the defendant have been delivered to him, and that he keeps no clerk, Ms books of account are admissible in evidence. In McGoldrick v. Traphagen, 88 N. T. 334, 338, it was said:

> “We think that the clerk intended was one who had something to do with, and had knowledge generally of, the business of his employer, in reference to goods sold or work done, so that he could testify on that subject. It evidently means an employs whose duty it is to attend to the duties of business, and thus is able to prove an' account, and not one who, from his isolated position as a bookkeeper, can have but little means of knowledge personally as to the transaction done, or information relating thereto, except what is mainly derived from others. The latter position was that occupied by the bookkeeepers of the respondent, and they were in no sense clerks, within the meaning of the law as to evidence of this character.”

See, also, Cobb v. Wells, 124 N. Y. 77, 26 N. E. 284, and cases cited in opinion.

The obvious purpose of the rule limiting the admission in evidence of books of account to cases where the party has no clerk is to withhold this class of evidence where the party has some third person in his employ, whose business it is to notice the sales made or services rendered, and to make entries of them in the books as they occur, and by whom he can prove the sale or services for which he seeks to recover. While this may be a border case, still we are of the opinion that the plaintiffs had no such clerk as would prevent the admission of their books under the rule established by the Vosburgh Case, and that, under the evidence, they were properly received.

The case, however, discloses that in the plaintiffs’ account there was included $4.41 for goods delivered to other persons, and as to which there was no evidence of any authority from the defendant to deliver them to the persons receiving them. This amount should "therefore be deducted from the plaintiffs’ recovery. Again, the plaintiffs’ books contained a charge of $15 for cash. This was not a proper subject of book account; and under the Vosburgh' Case, and subsequent cases following it, the books were insufficient evidence to justify a recovery therefor. There was no other evidence that would authorize the allowance of that sum. The defendant denied having it, and the plaintiffs testified that they had no recollection of paying or loaning him that amount. It follows, therefore, that the judgment herein should be modified by deducting from the amount of the recovery, as of the date of the judgment, the sum *813of $19.41, with interest from February 13, 1889, to September 25,. 1893, which amounts to the sum of $5.15.

Judgment modified by deducting therefrom, as of the time of its entry, the sum of $24.56, and, as so modified, affirmed, without costs-of this appeal to either party. All concur.