Hauptman v. Catlin

Daly, J., dissenting.

The final order made upon the proceedings supplementary to execution was, that the defendant, John M. Catlin, should give his note, at ninety days, for $380, with a general provision that he should pay over to the sheriff, or Kennedy and Hull’s attorney, whatever sum of money was due to Hauptman, by himself, or his wife, or both. The amount of this note was paid by the defendant, and went so far in satisfaction of the judgment. It appears, by the order, to he the amount then ascertained to be due. It is inferable that it was the extent to which the judge, from the facts before him, could make a compulsory order for the payment of a specific sum. That the defendant did not admit that any greater sum was due, is apparent from his denial in the answer that even the $380 was due. To reach the residue, Kennedy and Hill must have had a receiver appointed. ( Wyck v. Budley, 3 Code R. 159.) It does not appear that a receiver was appointed, but they sold real estate of Hauptman, under the execution, which realized $750, thus reducing the amount due upon their judgment, to $55 24. If it had appeared that Catlin, when examined, had admitted that this sum of $55 24 was due to the plaintiff, and the judge had, accordingly, made an order that he pay it over to Kennedy and Hill, it would be doubtful, even then, unless he had paid it, whether it could be deducted in the suit from the plaintiff’s claim. If such an order existed, Catlin could protect himself by paying it to Kennedy and Hill; and if he denied the existence of any indebt*738edness, beyond $380, which it would seem he did, Kennedy and Hill’s remedy would be by an action against him by the receiver; and if the plaintiff and the receiver both sought to recover it by action, the court could direct, when Catlin’s liability was established, to whom it should be paid. As the case stands here, the existence of this order constituted no defence, in whole or in part, to the plaintiff’s claim.

A sufficient foundation was laid for introducing the plaintiff’s boobs in evidence'. It was shown that he kept no clerk; that the books contained the daily entries made in the regular course of his business; that he kept fair and honest books. Some of the items, such as charges for materials furnished, were proved, and there was evidence to show that other charges were fair and reasonable. Many of the entries were made by the workmen, temporarily on a slate, and were then transferred, generally the following morning, by the plaintiff himself, to the boobs; but this would not render them the less admissible. (Sickles v. Mathew, 20 Wend. 72 ; Ingraham v. Beckins, 9 Serg. & Rawle, 285.) To warrant the introduction of the books, the party is bound to prove, by those who dealt and settled with him, that he beeps fair and honest books; and this the plaintiff did. Corey proved that he had purchased different articles of the plaintiff, quantities of lead, oil, &c., on credit, which were entered in the day books, and that he settled with him for the articles purchased, and found the entries correct. The deficiency of evidence upon this point appears to be the principal objection now urged against their introduction ; but it was amply sufficient. The number of days’ labor charged for in the books is 265 days, and the plaintiff proved 250 days’ work, by his witnesses, which certainly was strongly in support of the general accuracy of the books.

From .the nature of the building, and the manner in which this work was done, it was far more satisfactory in fixing its value, that the referee should be guided by the number of days’ work that had been done and by the materials consumed, than by the general estimate of persons in the same business, who saw the house after the work was completed. *739At all events, it was a question for the referee, and cannot he reviewed here.

There is nothing to show that the portion of Catlin’s examination, which was excluded, was at all material to the case. It was proved by the plaintiff that he had said that he had paid but fifty dollars on the bill. That portion of the deposition, and all relating to that admission, the defendant was allowed to give in evidence. It does not follow that because the admission was proved to have been made upon his examination, that the defendant was entitled to the whole of his examination. It could only be material or admissible, so far as it went, to repel the presumption created by that admission. And if it contained any thing more than that which the defendant was allowed to read which was material, he should have made his offer of the portion he desired to read, and have taken the ruling of the referee, specifically, upon it.

I see no ground for disturbing the finding of the referee. There may be a question as to the right to include the wife as a defendant in this action, and bind her property by a lien founded upon a contract made by her husband. But the objection was not raised by the answer, or made before the referee, and cannot, consequently, be reviewed upon a motion to set aside the report.

Judgment reversed.