The action was brought to recover an alleged balance of account for money paid out by the testator for the defendant. It was proved to a reasonable degree of certainty that she deposited moneys with him from time to time, and that he paid them out for taxes, repairs, and other expenses for her, incurred in and about her property and the management of her household affairs. He died on the 24th of September, 1887, and for a period of years before that he is stated by the defendant’s witness Zimmerman to have been at her house three or four times a week; and when persons were working there, he directed them what they should do. For bills sanctioned by her he made payments to her creditors, and the same thing took place as to other bills which were authenticated by persons performing the services and delivering materials which were not expressly sanctioned by her. And to make definite proof of the amounts from time to time paid on her account the books of the testator were produced and offered in evidence. In support of "the offer evidence was given tending to establish the facts-that the testator himself kept these books, or directed the entries to be made in them when that was done by another person, and that the books were correct, so far as other persons had settled their accounts with the testator from them. It was also proven that the plaintiff was examined as a witness on behalf of the defendant, under an order obtained by her before the trial, and on that examination the books and papers of the testator were produced in compliance with a notice requiring them, served by the attorney for the defendant upon the plaintiff’s attorney. When they were produced before the justice, and the examination was in progress, the defendant’s attorney asked leave to^inspect them, and he was permitted to do so in compliance with his request, and did examine the ledgers and other papers. The referee, after proof of these facts, received the books in evidence; but afterwards, when it was agreed that there had been no inspection of the cash-book, he struck that out as evidence, on the motion of the defendant’s counsel. It is evident, therefore, that the ledgers were retained solely because of their production under the notice, and their inspection by the attorney and counsel of the defendant. The other evidence relating .to the cash-books as well as the ledgers in the final judgment of the referee must have been considered insufficient to render the books admissible. If it had not been, it is clear that it would not have been excluded from the case, because of the fact that it had not been inspected after it liad been produced. The admissibility of the ledgers must therefore depend upon this production and inspection of those books. That these facts rendered them evidence for the plaintiff has not been clearly sustained by the authorities in this state. The rule allowing books and papers to be-received after their inspection by the adverse party was not approved Spencer, J., in Kenny v. Clarkson, 1 Johns. 385, 394, nor by the justice writing the opinion in Carradine v. Hotchkiss, 120 N. Y. 608, 24 N. E. Rep. 1020. But the point was there left undecided, as it was not important to settle it for the purposes of the decision. But in the case of Williams v. Davis, 7 Civil Proc. R. 282,
. The testator had ,no clerk, in the sense in which that word has been used in the cases defining the proof under which the books of the party will be received as evidence. The entries made by his brother were by the direction of the testator when made in the cash-book, of original entry; and so were the postings made in the ledgers; and those services rendered by another will not exclude the books as evidence. McGoldrick v. Traphagen, 88 N. Y. 334. In all other respects the evidence brought these books within the general rule entitling them to be received as evidence. But the referee probably acted under the impression, when he rejected the cash-book, that the books were inadmissible under the established rule, because the accounts were wholly of transactions in money. And in Case v. Potter, 8 Johns. 163, it was passingly said that the books kept by the party himself were not evidence of money lent; but the entry there was of a single transaction, being a loan of $10. The question was not presented whether the books of a party kept by himself would be evidence when his business was dealing in money, as that of the testator was. If it had been, there is a probability that such books would have been held to be evidence; for the rule, broadly stated, was declared to apply “to the regular entries of the party in the usual course of his. business,” (Id. 164;) and the entries in these books were of that description,, and no sound reason presents itself requiring their exception. They were equally the books of a trader, carrying on his business, and keeping his accounts himself, with his customers, which included others besides the defendant. And so it has already been held in Burke v. Wolfe, 38 N. Y. Super. Ct. 263, and Young v. Jones, 8 Iowa, 219; and the principle was applied to cash items not exceeding $6.67 in Bassett v. Spofford, 11 N. H. 167. But if the books are admissible to that extent, then there is no other than an arbitrary dictum for that restriction, and they should be allowed as evidence so far as-to comprehend all the entries strictly in the course of the business of the party. The necessity and reason for the latter is equally as decisive as it is in the other case. These books should all, therefore, have been retained as, evidence by the referee. But as the items in the cash-book were all posted; into the ledgers he did, notwithstanding the exclusion of the cash-book, have all the evidence before him which the books could furnish. The ledgers were, the complement of the cash-book, and as such legally forming a part of this
Questions were asked of the defendant as a witness in her own behalf, which in several instances she seems to have been competent to answer; but her evidence'was afterwards received, and the exceptions in that manner obviated. Proof was also given of the payment of the testator’s check for $17,-100 on the purchase price of the residence' of the defendant. The sum of $15,000 of this amount was shown to have been obtained from the sale of a dwelling on Fifteenth street, which she had sold. She was asked where the residue of the money came from, and answered that it was “saved money I had.” This was, on motion of the plaintiff’s counsel, stricken out; and in a subsequent answer she testified that the rest was her money, and 'that also was stricken out on like motion. But it is not necessary very specially to