(dissenting). The claim of Harry Pappalau, the appellant, against the estate of his deceased brother, William, was dismissed upon the ground of failure to establish it, as the surrogate stated, by “ that clarity of proof required for the maintenance and allowance of claims advanced after the death of decedent.” Appellant and decedent were sons of Valentine Pappalau, Sr., who established an ice business near Albany, and who died in 1919, leaving his homestead and house to the two children mentioned and their brothers, Valentine, Jr., and Edward. These four conducted the business until Valentine, Jr., died in 1931, and thereafter it was conducted by the survivors. After the death of the father, the homestead was occupied by the decedent, his son, Henry, twelve years of age, appellant and his wife and her sister. The rejected claim is for board of William and bis son, Henry, for nine years, beginning May 1, 1919, aggregating $4,680 (ten dollars a week), upon which there was credited $2,250, leaving a claimed balance of $2,430. It is not disputed that decedent and his infant son boarded with appellant’s family; the only contribution which William made toward the food or other expenses of maintaining the household was the purchase of the milk for “ a few years.” According to the testimony of the wife of appellant, it was agreed that this should be done in addition to paying ten dollars a week. After May 1, 1928, it is unquestioned that seven dollars and fifty cents a week was deducted from decedent’s drawing account in the Pappalau ice business, and a like sum from the wages paid the son Harry, the fifteen dollars being turned over to the claimant as a payment for board. This continued, so far as decedent was concerned, until his death and until the son Harry ceased to be employed in 1934. Five witnesses testified to admissions by decedent that there was an unpaid balance for board of himself and his son prior to May^l, 1928. Of these, two were not members of the Pappalau family. One, Charles Smith, who has worked for appellant since 1925, the other, Homer Carhart, who was in appellant’s employ until December, 1934. There was no evidence gainsaying the debt.
Appellant asserts error for the exclusion on the trial of an account book which shows charges of $520 each year from 1920 to 1928, both inclusive, for board of decedent and his son, with credits of $2,250. The testimony of claimant’s wife that it was a record of transactions made in the regular course of the business between decedent and claimant, the entries being made by claimant at the time of the several transactions, brings the book within the provisions of the Civil Practice Act (§ 374-a). Johnson v. Lutz (253 N. Y. 124) gives the history of the common-law rules as to admis*710sions in evidence of books and accounts prior to and after Vosburgh v. Thayer (12 Johns. 461, decided in 1815) to the enactment of section 374-a of the Civil Practice Act. The purpose of the Legislature in enacting the section “ was to permit a writing or record, made in the regular course of business, to be received in evidence without the necessity of calling as witnesses all of the persons who had any part in making it, provided the record was made as a part of the duty of the person making it, or on information imparted by persons who were under a duty to impart such information.”
In Matter of Roge v. Valentine (280 N. Y. 268) it is stated: “ The common-law rule has been changed to some extent by section 374-a of the Civil Practice Act.” In sustaining the exclusion of entries made upon check stubs and cards the opinion further states, “ It does not sufficiently appear in this case that the notations on the record cards and check stubs were made in the regular course of business and at the time of the transaction noted or within a reasonable time thereafter.” The wife of the claimant testified to the making of the entries in this book in the regular course of business and at the time of the transaction recorded. The admissibility of the entries should not be confounded with the weight which the trier of the facts is required to give them. The section says, “ all other circumstances of the making of such writing or record, * * * may be shown to affect its weight, but they shall not affect its admissibility.” It was error to exclude the entries. (Harrison v. N. Y. Central R. R. Co., 255 App. Div. 183; Littmann v. Goldstein, Id. 540.) This is more impressive because the conclusion reached by the surrogate was at variance with the testimony of five witnesses, and justified only in his memorandum by the recital that claims of this kind should be established by clear and convincing proof.
The decree should be reversed on the law and facts and a new trial granted.
Crapser, J., concurs.
Decree of the surrogate affirmed, with costs.