Opinion
Argued April 22, 1889
Decided May 3, 1889
John J. Linson for appellant.
E.S. Wood for respondent.
The action was brought to recover the amount of eighteen checks drawn by the defendant Sarah M. Fowks, by her attorney, Horatio Fowks, upon the National Bank of Rondout, and payable to the order of the defendant Madden, and indorsed by the latter. Madden alone defended, and alleged that after the checks were indorsed by him they were altered in respect to the time for payment, so as to make them payable at a future day without his knowledge or consent. He testified that, when so indorsed by him, no time of payment was expressed in any of them. When they were discounted by the plaintiff they, respectively, appeared to be payable at specified times subsequent to their dates. The defendant Madden also testified that when he indorsed the several checks he made a memorandum entry of the dates, amounts and time when payable of them, respectively; and in his examination in chief, in his own behalf, he was permitted, against the objection and exception of the plaintiff's counsel, to read such memoranda to the jury. The main question arises upon the admissibility of those entries in evidence. The rule in this state prior to the decision in Merrill v. Ithaca and Owego Railroad Company (16 Wend. 586) was, that a witness might refer to his memorandum to refresh his memory, and then was permitted to testify to the facts, provided he could do so independently of it upon his recollection. That was the extent of the rule in this respect. ( Feeter v. Heath, 11 Wend. 479; Lawrence v. Barker, 5 id. 301.) In the Merrill Case the court reviewed the cases, and cited text books upon the subject, and announced the conclusion that original entries read by a witness, and which he should testify were correctly made, might be read in evidence, though he remembered nothing of the facts represented by them, but that to render such entries admissible, it should appear that "every source of primary evidence had been exhausted." Since then, so far as we have observed, it has uniformly been held admissible for the witness to refer to the original entries in respect to the facts which he is called upon to testify, and if he verifies their correctness, and is unable to recollect such facts, independently of such entries, they may be read in evidence. ( Bank of Monroe v. Culver, 2 Hill, 531; Cole v. Jessup, 10 N.Y. 96; Halsey v. Sinsebaugh, 15 id. 485; Russell v. H.R.R.R. Co., 17 id. 134; Guy v. Mead, 22 id. 462; Squires v. Abbott, 61 id. 530-535; Howard v. McDonough, 77 id. 592; Peck v. Valentine, 94 id. 569; Mayor, etc., v. Second Ave. R.R. Co., 102 id. 572-580; Brown v. Jones, 46 Barb. 400; Meacham v. Pell, 51 id. 65; Kennedy v. O. S.R.R. Co., 67 id. 170-182.)
The General Term cited, on this question, Guy v. Mead, and made the remark that while that case differed from this, in the fact that there the witness had no recollection of the matter, independently of the memorandum referred to, the court did not place its decision upon that ground. Although, in that case, the court did not expressly declare that the admissibility of the evidence was dependent upon the want of recollection of the witness, the fact existed which rendered the paper competent evidence within the rule as before stated; and reference was there, with apparent approval, made to Russell v. Hudson River Railroad Company ( supra), where the judgment of the court below was reversed for error in receiving a memorandum in evidence when, for aught that appeared, the witness had recollection of the facts to which he was called upon to testify, independently of it. And the cases above cited, determined subsequently to Guy v. Mead, state and adhere to the doctrine that original entries made by a witness are admissible an auxiliary to his evidence, only when he is unable to distinctly recollect the fact without the aid of it. This proposition seems well settled in this state by a current of authority for the last fifty years, which now requires adherence to it, unless it may be seen that it works unjustly upon the rights of the parties. The rule which renders such entries admissible rests upon the principle of necessity for the reception of secondary evidence, and is not applicable where the witness has a distinct recollection of the essential facts to which they relate. The primary common-law proof is then furnished, and the necessity for evidence of the lesser degree does not arise. And this right, so qualified, to introduce such secondary evidence is the better rule, in view of the opportunity which otherwise might exist, to superadd a written memorandum to the evidence of a witness, which it cannot be said might not sometimes be improperly made available to strengthen his testimony with a court or jury, and such may be within reasonable apprehension until the moral infirmity of human nature becomes exceptionally less than it yet has. This reason for the rule so limited has also been in the minds of the courts in deciding the cases declaring it. ( Meacham v. Pell, 51 Barb. 65-68; Driggs v. Smith, 4 J. S. 283; Russell v. H.R.R.R. Co., 17 N.Y., 134.)
In holding, as we do, that entries made by a witness are not admissible, unless it appear that he does not recollect the occurrence to which they relate, independently of them, we but reaffirm what may be deemed the rule already quite well established in that respect. In the present case it not only did not so appear, but the evidence of the defendant fairly indicated that his recollection was distinct of the facts in issue, to which his memoranda referred. The ruling which permitted the entries to be read in evidence, therefore, was error, unless they may, as contended by the defendant's counsel, be considered admissible as part of the res gestæ. It is difficult to see that it does, and we think it does not come within that doctrine. The entries were made by defendant, and were descriptive of the papers indorsed by him. The acts which he then was called upon to do, and did do, were to indorse the checks. The fact of the indorsement by him of his name upon them is not questioned. The act of making the entries was not illustrative of that of the indorsement, nor did it tend to characterize it, and it does not come within the rule requisite to permit it to be treated as part of the transaction. (Wharton's Ev. § 259; Nutting v. Page, 4 Gray, 584; Moore v. Meacham, 10 N.Y. 207; Tilson v. Terwilliger, 56 id. 277.)
The case of Bigelow v. Hall ( 91 N.Y. 145), is not applicable in that respect to the situation presented in this case. There the parties participated in making the entries at the time of the transaction, and they had relation to it, while here the current entries were made by the defendant alone, and all that Fowks appears to have done was to make from time to time entry of a supposed past act of payment of a previously indorsed check, and that was done before the defendant's entry descriptive of the succeeding one, and with the latter entry the party procuring the indorsement had nothing to do, nor does it appear that he was then advised of the entry as made by the defendant. ( Brown v. Thurber, 58 How. 95-97.)
The evidence of the person who represented the drawer of the checks, and drew them as her attorney, was contradictory of that given by the defendant Madden in every respect essential to the issue presented at the trial. It cannot be seen that the reading to the jury of the memoranda may not have had some influence upon their action on the main question of fact, which they were required to determine.
The alleged alteration was a material one, and the finding that it was made after the defendant's indorsement, and without his consent, presumptively required the conclusion that the checks so altered were rendered invalid as against the indorser, and that such defendant was entitled to a verdict. ( Crawford v. West Side Bank, 100 N.Y. 50.)
The presumption in such case is, that it was so made as to vitiate it, and the burden is with the party seeking to make an altered instrument the basis of recovery to relieve it from the effect of the unauthorized alteration, which may be done by showing that it was made by a stranger to it. ( Waring v. Smyth, 2 Barb. Ch. 119; Herrick v. Malin, 22 Wend. 388; Smith v. McGowan, 3 Barb. 404.)
Nothing appears in this case to indicate that any relief in that manner can be had from the effect of the alteration, if the jury find it was made after the indorsement and without the knowledge or consent of the indorser.
No other question presented here by the plaintiff's counsel seems to require consideration.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur, except PARKER, J., not sitting.
Judgment reversed.