New York Law Review

Tag: business records exception

  • People v. Darnell, 28 N.Y.3d 546 (2017): Admissibility of Subscriber Information as Non-Hearsay Evidence

    People v. Darnell, 28 N.Y.3d 546 (2017)

    Subscriber information in prepaid cell phone records is admissible as non-hearsay evidence if not offered to prove the truth of the matters asserted within the records, but rather to establish a connection between a cell phone and the defendant.

    Summary

    The New York Court of Appeals addressed the admissibility of subscriber information from prepaid cell phone records in a criminal trial. The defendant was convicted of robbery based partly on the victim’s identification. The prosecution introduced subscriber information from phone records to link a phone used during the crime to the defendant, even though the information itself was not verified by the phone companies. The court held that this information was admissible because it was not offered to prove the truth of the subscriber’s statements but to establish a connection between the phone and the defendant, which could be used to corroborate the victim’s identification. This ruling clarified the application of the business records exception to the hearsay rule, specifically in cases where the information contained within the record is being used for a non-hearsay purpose.

    Facts

    The defendant was convicted of second-degree burglary and robbery following an incident where he and an accomplice entered the victim’s home, robbed, and bound him. During the robbery, the accomplice received a series of phone calls. The victim provided the police with the accomplice’s phone number. Police subpoenaed the phone records, discovering that one of the numbers that called the accomplice’s phone was registered to “Darnell Patterson,” with an address and date of birth matching those of the defendant. The victim subsequently identified the defendant in a lineup. The prosecution sought to introduce the subscriber information, specifically the name, address, and date of birth associated with the phone numbers.

    Procedural History

    The defendant moved to preclude the subscriber information as hearsay. The trial court admitted the subscriber information, not for its truth, but to show that the subscriber’s information given to the phone company, linked the phone to the defendant. The defendant was convicted. The Appellate Division affirmed the trial court’s decision. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the Appellate Division exceeded its authority under CPL 470.15 (1).
    2. Whether the subscriber information in the cell phone records was properly admitted as non-hearsay evidence.

    Holding

    1. No, because the Appellate Division did not rely on a different ground than the trial court in affirming the conviction.
    2. Yes, because the subscriber information was not offered to prove the truth of the information within the records, but for a non-hearsay purpose linking the phone to the defendant.

    Court’s Reasoning

    The Court of Appeals began by addressing the scope of the Appellate Division’s review, rejecting the defendant’s argument that the appellate court had exceeded its authority. The court determined that both lower courts had based their decisions on the fact that the evidence was not hearsay because it was not offered for the truth of the matters asserted in the statement. The court then turned to the merits of the evidentiary ruling. It affirmed that the subscriber information was properly admitted for a non-hearsay purpose, despite the fact that the subscriber was not under a business duty to report the information correctly. The Court relied on the business records exception to the hearsay rule as defined by CPLR 4518 (a). The Court found that the subscriber information was not being offered for its truth (i.e., to prove that “Darnell Patterson” was the user), but rather to show that the account had a connection to the defendant to corroborate the victim’s identification. The court noted that the information was akin to the registration card of a hotel, it was not admitted to prove the truth of the matters asserted but to show a link with the user.

    “‘If the informant was not under a business duty to impart the information, but the entrant was under a business duty to obtain and record the statement, the entry is admissible to establish merely that the statement was made . . . [but] another hearsay exception is necessary in order to receive the statement for its truth.’”

    Practical Implications

    This case provides guidance on the admissibility of business records, particularly when the information within the records is not offered for its truth. Attorneys should carefully consider the purpose for which evidence is being offered and whether it is being used to prove the truth of the matter asserted. This case supports the admissibility of evidence that establishes a link between the phone and the defendant. This ruling is significant for attorneys litigating cases involving digital evidence, phone records, and the establishment of identity and can be used to argue for the admissibility of such evidence in court. This case should influence how legal professionals approach the admissibility of digital and circumstantial evidence in trials. The distinction between hearsay and non-hearsay uses of evidence is critical. The case highlights the importance of carefully articulating the purpose for which evidence is offered.

  • People v. Ortega, 15 N.Y.3d 610 (2010): Admissibility of Medical Records Under Business Records Exception

    15 N.Y.3d 610 (2010)

    Statements in medical records are admissible under the business records exception to the hearsay rule if they are relevant to diagnosis and treatment; however, statements not related to these purposes are inadmissible.

    Summary

    The New York Court of Appeals addressed whether certain statements in medical records were properly admitted under the business records exception to the hearsay rule. In People v. Benston, the complainant’s medical records included references to “domestic violence” and a “safety plan.” In People v. Ortega, the complainant stated he was “forced to” smoke crack cocaine. The Court held that the references to domestic violence and a safety plan were admissible as relevant to diagnosis and treatment of a domestic violence victim, while the reference to the weapon’s color was harmless error. The statement in Ortega was also admissible, as it related to the treatment of a patient who was the victim of coercion. The Court affirmed both convictions.

    Facts

    People v. Benston: The complainant, who allowed the defendant to live in her apartment, was assaulted and choked by him after she asked him to move out. At the hospital, she reported being strangled by an old boyfriend with a black leather belt, and was diagnosed with “domestic violence [and] asphyxiation.”

    People v. Ortega: The complainant claimed the defendant forced him at gunpoint to smoke crack cocaine and withdraw money from ATMs. He was taken to the hospital, where he reported he “was forced to smoke [a] white substance from [a] pipe.” The defendant testified that the complainant voluntarily smoked crack and handed over his personal property.

    Procedural History

    People v. Benston: The defendant was convicted of assault and other charges. The Appellate Division affirmed. The Court of Appeals affirmed.

    People v. Ortega: The defendant was convicted of criminal possession of stolen property. The Appellate Division affirmed. The Court of Appeals affirmed.

    Issue(s)

    1. Whether references to “domestic violence” and a “safety plan” in a victim’s medical records are admissible under the business records exception to the hearsay rule.

    2. Whether a complainant’s statement that he was “forced to” smoke crack cocaine is admissible under the business records exception.

    Holding

    1. Yes, because with all that has been learned about the scourge of domestic violence in recent decades, we now recognize that it differs materially, both as an offense and a diagnosis, from other types of assault in its effect on the victim and in the resulting treatment.

    2. Yes, because treatment of a patient who is the victim of coercion may differ from a patient who has intentionally taken drugs.

    Court’s Reasoning

    The Court relied on CPLR 4518(a), which allows admission of records made in the regular course of business if made at the time of the event or within a reasonable time thereafter. Hospital records are considered trustworthy because they are relied upon in matters of life and death and reflect the patient’s motivation to report accurately.

    The Court distinguished Williams v. Alexander, where a statement about how an accident occurred was deemed inadmissible because it was irrelevant to diagnosis or treatment. The Court noted, however, that in some situations, how an injury occurred may be helpful to medical understanding.

    In Benston, the Court found the relationship between the parties clearly one subject to classification as involving domestic violence. “In this context, it is relevant for purposes of diagnosis and treatment that complainant’s assault was at the hands of a former boyfriend.” The Court emphasized that domestic violence differs materially from other assaults, requiring consideration of psychological and trauma issues. Developing a safety plan and providing information about social services are important parts of treatment.

    In Ortega, the statement that the complainant was “forced to” smoke crack was relevant, as the amount and nature of the substance ingested, and the fact that it was coerced, can impact treatment.

    Judge Smith concurred, arguing that the business records exception alone is insufficient to admit the statements, as it does not address hearsay within hearsay. He proposed adopting a medical diagnosis and treatment exception to the hearsay rule, justifying it by the intrinsic reliability of statements to one’s own doctor.

    Judge Pigott concurred in the result only, arguing that the content of medical records should be subject to redaction of irrelevant information. The “diagnosis” of domestic violence and references to a “safety plan” should not have been admitted because “whether complainant was strangled by a former intimate partner or by a stranger was irrelevant to the type of treatment she received for her physical injuries.”

  • People v. John, 27 N.Y.3d 331 (2016): Admissibility of DNA Reports and Confrontation Rights

    People v. John, 27 N.Y.3d 331 (2016)

    A DNA report generated by a subcontracting laboratory is non-testimonial and admissible without violating the Sixth Amendment’s Confrontation Clause if it contains only raw, machine-generated data, and a testifying expert independently analyzes that data to form conclusions linking the defendant to the crime.

    Summary

    The New York Court of Appeals addressed whether the introduction of a DNA report prepared by a subcontractor laboratory, admitted through the testimony of an Office of Chief Medical Examiner (OCME) forensic biologist, violated the defendant’s Sixth Amendment right to confrontation. The Court held that the report was non-testimonial because it contained only raw data and the OCME biologist performed an independent analysis linking the defendant to the crime. The Court emphasized that the biologist testified about the procedures and protocols used by the subcontractor lab, and that the defense had the opportunity to cross-examine her on this point. This case clarifies the scope of admissible evidence under the Confrontation Clause when dealing with subcontracted forensic testing.

    Facts

    In 1993, the victim was sexually assaulted. A rape kit was prepared and sent to OCME but wasn’t immediately tested due to a backlog. In 2002, OCME sent the rape kit to Bode Technology, a subcontractor, for DNA testing. Bode isolated a male DNA specimen and generated a report containing raw data, graphs, and charts. Subsequently, a “cold hit” linked the defendant’s DNA (recorded in a national database from an unrelated arrest) to the specimen from the rape kit. An OCME forensic biologist compared the defendant’s DNA characteristics to the specimen from the rape kit and determined they were a match.

    Procedural History

    The defendant was charged with sodomy, kidnapping, assault, and endangering the welfare of a child. The trial court denied the defendant’s motion to dismiss based on the statute of limitations. At trial, the court admitted the DNA report over the defendant’s objection. The jury convicted the defendant. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the introduction of a DNA report processed by a subcontracting laboratory through the testimony of a forensic biologist from OCME violated the defendant’s Sixth Amendment right to confrontation where the report consisted of raw data and the biologist performed her own analysis.

    Holding

    Yes, because the DNA report was non-testimonial as it contained merely machine-generated data, and the OCME forensic biologist conducted an independent analysis linking the defendant’s DNA to the crime, thus satisfying Confrontation Clause requirements.

    Court’s Reasoning

    The Court relied on Crawford v. Washington, which held that testimonial statements of a witness absent from trial are inadmissible unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. The Court distinguished Melendez-Diaz v. Massachusetts, where “certificates of analysis” concluding that a seized substance was cocaine were deemed testimonial and inadmissible without testimony from the analysts. Here, the OCME biologist testified, was available for cross-examination, and conducted her own analysis. The Court emphasized that the Bode report contained only raw data, unlike the conclusions presented in Melendez-Diaz. Quoting People v. Meekins, the Court noted that the report was “raw data… in the form of nonidentifying graphical information.” Also, the Court found no evidence of pro-law enforcement bias in Bode’s procedures, as the testing occurred before the defendant was a suspect. The Court concluded that the OCME witness provided a sufficient foundation for introducing the Bode documents under the business records rule, citing People v. Cratsley, because she relied on the documents, was familiar with Bode’s procedures, and testified to the reliability of the testing. Finally, the Court found no ineffective assistance of counsel because the statute of limitations claim would have been meritless.

  • People v. Guidice, 83 N.Y.2d 630 (1994): Admissibility of Police Line-Sheets as Business Records

    People v. Guidice, 83 N.Y.2d 630 (1994)

    Line sheets created by police officers during a surveillance operation to track recorded phone conversations are admissible as business records if they are made in the regular course of police business, even if they are also potentially useful for litigation.

    Summary

    The New York Court of Appeals addressed whether line sheets, created by police during a surveillance operation to document intercepted phone conversations, were admissible as business records. The defendant argued the line sheets were created solely for litigation purposes and thus inadmissible. The Court held that the line sheets were admissible because they served an administrative function in the police surveillance operation, were required by court order, maintained an inventory of tapes, and were included in progress reports, making them records made in the ordinary course of police business, regardless of potential litigation use.

    Facts

    Defendants David and Anthony Guidice, along with James Smith, were convicted of assault after an altercation with Tom Meyer at a construction site. The assault occurred after David Guidice called his father, Anthony, for help following a dispute with Meyer. Anthony then contacted Smith to assist David in exacting retribution. As evidence, the prosecution presented tape recordings of intercepted telephone conversations. The conversations were recorded during an unrelated investigation, so the prosecution sought to establish the chain of custody using line sheets prepared by monitoring agents at the time of each conversation. The line sheets contained details such as the master tape number, date, call number, conversation times, and recorder counter numbers.

    Procedural History

    The defendants were convicted of assault in the second degree after a jury trial. The Appellate Division affirmed the judgments of conviction. The defendants appealed to the New York Court of Appeals, arguing that the line sheets were improperly admitted and that venue was improper.

    Issue(s)

    1. Whether line sheets prepared by police officers during a surveillance operation are admissible as business records under CPLR 4518.
    2. Whether venue was properly established in New York County.
    3. Whether the trial court erred in refusing to give a circumstantial evidence charge regarding defendant Anthony Guidice.

    Holding

    1. Yes, because the line sheets were records made in the ordinary course of police business, serving an administrative function beyond potential litigation use.
    2. Yes, because defendant Anthony Guidice formulated the criminal intent to commit assault in New York County.
    3. No, because Anthony Guidice’s statements constituted direct evidence of his involvement in the assault.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s ruling, finding the line sheets admissible as business records under CPLR 4518. The Court reasoned that law enforcement agencies qualify as “businesses” for the purposes of the business records exception to the hearsay rule. The Court relied on People v. Foster, 27 NY2d 47, 52, noting that while the line sheets might foreseeably be used for litigation, that was not their sole purpose. The Court stated that the linesheets served an important administrative function, were required by court order to maintain an inventory of tapes, safeguard them against tampering, and were included in progress reports filed with the judge supervising the wiretap order.

    The court also held that venue was proper in New York County because Anthony Guidice formed the intent to commit the assault there. Citing People v. Ribowsky, 77 NY2d 284, 292, the Court stated that whenever a defendant commits an act in a county sufficient to establish an element of a charged offense, co-defendants may likewise be tried in that county.

    Finally, the Court determined that a circumstantial evidence charge was not required because Anthony Guidice’s statements were direct evidence of his guilt. His statements that he “sent two guys to break [Meyer’s] legs” and that he “put him in the hospital” were acknowledgments that he solicited the attack. The court referenced People v Rumble, 45 NY2d 879, 880, stating that a defendant’s statement is considered direct evidence if it constitutes a relevant admission of guilt.

  • People v. Kennedy, 68 N.Y.2d 569 (1986): Business Records Exception Requires Proof of Systematic Record-Keeping

    People v. Kennedy, 68 N.Y.2d 569 (1986)

    To admit records under the business records exception to the hearsay rule, a party must establish that the record was made in the regular course of business, it was the regular course of business to make such records, and the record was made at or near the time of the event being recorded.

    Summary

    Kennedy, a police officer, was convicted of conspiracy and criminal usury based on evidence suggesting he was a silent partner in a loansharking operation. The prosecution introduced pocket diaries as business records of the usurer, supported by expert testimony interpreting the entries. The New York Court of Appeals reversed the conviction, holding that the prosecution failed to establish a proper foundation for admitting the diaries under the business records exception to the hearsay rule because there was insufficient evidence that the records were systematically maintained or created as part of a regular business practice. The court emphasized that the statute requires proof of a routine, habitual, and systematic record-making process to ensure trustworthiness.

    Facts

    Frank DiMare borrowed money from Thomas Manuli, also a police officer, at usurious interest rates. The People alleged that Kennedy, another police officer, was Manuli’s silent partner, providing the cash for the loans and receiving a percentage of the usurious payments. The prosecution’s evidence included DiMare’s testimony, admissions from Kennedy, bank records, recorded conversations, and two pocket diaries seized from Manuli’s apartment. These diaries contained cryptic entries of names, initials, and numbers. The People’s expert witness interpreted the entries as records of loans, payments, and expenses related to the usurious lending operation, linking Kennedy to the transactions.

    Procedural History

    Kennedy was convicted of conspiracy in the fourth degree and criminal usury in the second degree. The Appellate Division reversed the conviction and ordered a new trial, finding that the People failed to lay a sufficient foundation for the admission of the diaries. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the prosecution established a sufficient foundation to admit the pocket diaries as business records under CPLR 4518(a), thereby satisfying an exception to the hearsay rule.

    Holding

    No, because the prosecution failed to demonstrate that the diaries were made in the regular course of business, that it was the regular course of business to make such records, and that the records were made at or near the time of the event being recorded.

    Court’s Reasoning

    The Court of Appeals acknowledged that the business records exception, codified in CPLR 4518(a), could theoretically apply to records of a criminal enterprise if proper foundation is established. The court emphasized that the statute requires proof that the record was made in the regular course of business, that it was the regular course of such business to make the record, and that the record was made at or about the time of the event. The Court found that the expert testimony, while opining that the diaries were the type of records kept in a usury business, failed to establish the regularity and systematic nature of the record-keeping. Specifically, the expert’s cross-examination revealed that each usurer maintains records in their own style, and the entries were sometimes predated, undermining the reliability and trustworthiness required for the business records exception. The Court stated, “More, however, is required by way of foundation than an expert’s view that, because usurers personally and cryptically maintain records of what is collected, paid and owed, two pocket diaries identified as a usurer’s record are ‘business records’ admissible in evidence against a third person for the truth of their contents.” The court underscored the importance of ensuring fairness to the accused, particularly in criminal cases, where the right to confrontation is constitutionally protected. Absent proof of systematic record-keeping, the diaries were inadmissible hearsay.

  • People v. Farrell, 58 N.Y.2d 637 (1982): Admissibility of Breathalyzer Test Results and Destruction of Evidence

    People v. Farrell, 58 N.Y.2d 637 (1982)

    The prosecution is not required to preserve breathalyzer test ampoules if the defendant fails to show the ampoule could be reanalyzed to produce material evidence and the opportunity to examine another ampoule from the same batch is provided.

    Summary

    The New York Court of Appeals addressed whether the prosecution was required to preserve the test ampoule used in a breathalyzer test and whether certain certificates showing the results of analyses of a sample ampoule were admissible as business records. The court held that the prosecution was not required to preserve the ampoule, as the defendant failed to show it could be reanalyzed to produce material evidence. Further, the certificates were properly admitted as business records, as they were prepared in the ordinary course of business and detailed the test results.

    Facts

    The defendant was arrested for driving while having .10 of one per centum or more by weight of alcohol in his blood and driving while ability impaired by the consumption of alcohol. A breathalyzer test was administered, and the ampoule used in the test was subsequently destroyed in accordance with routine practice by the New York State Police. Two and a half months after his arrest, the defendant moved for inspection of the test ampoule or dismissal of the indictment.

    Procedural History

    The trial court denied the defendant’s motion for inspection of the test ampoule or dismissal of the indictment. The Appellate Division affirmed the trial court’s decision. The case was then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the People were required to preserve the test ampoule used in the breathalyzer test for the defendant’s inspection?

    2. Whether the certificates showing the results of analyses of a sample ampoule were admissible as business records?

    Holding

    1. No, because the defendant submitted no evidence to show that the ampoule could have been reanalyzed to produce material evidence, and the option of examining another ampoule from the same batch, along with authentication procedures, provided adequate protection of the defendant’s due process rights.

    2. Yes, because the certificates recited and uncontroverted testimony showed that the reports were prepared in the ordinary course of the New York State Police Laboratory’s business, and it is the regular course of the laboratory’s business to make such records.

    Court’s Reasoning

    The Court of Appeals reasoned that the prosecution’s routine destruction of the breathalyzer ampoule did not violate the defendant’s due process rights. The court emphasized that the defendant had not demonstrated that reanalysis of the ampoule would yield material evidence. Additionally, the availability of another ampoule from the same batch and the procedures for authenticating the test results provided adequate safeguards. As such, the court found no basis to require the People to preserve the test ampoule.

    Regarding the admissibility of the certificates, the court applied the business records exception to the hearsay rule, citing People v. Gower, 42 N.Y.2d 117, 121. The court noted that the certificates were prepared in the ordinary course of the New York State Police Laboratory’s business, detailing the date of analysis, the individuals who conducted the tests, the materials analyzed, and the test results. The court concluded that these certificates met the criteria for admissibility as business records.

    The court stated, “Thus, the trial court correctly ruled that the People were not required to preserve the test ampoule and that the option of examining another ampoule from the same batch along with the procedures required to authenticate the test results provided adequate protection of defendant’s due process rights.”

  • People v. Bakker, 28 N.Y.2d 49 (1971): Establishing Speeding Violations and Admissibility of Speedometer Deviation Records

    People v. Bakker, 28 N.Y.2d 49 (1971)

    To prove a speeding violation under Vehicle and Traffic Law § 1180(b), the prosecution must show that a higher speed limit was not authorized for the location, and a speedometer deviation record is admissible as a business record if a proper foundation is laid.

    Summary

    The defendant was convicted of speeding. The County Court reversed, holding the prosecution failed to prove a higher speed limit wasn’t authorized and that a speedometer deviation record was improperly admitted. The Court of Appeals reversed the County Court, holding that the prosecution met its burden by presenting evidence that no higher speed limit had been established and that the speedometer deviation record was admissible as a business record, provided a proper foundation was laid to establish its reliability.

    Facts

    A State Trooper clocked the defendant driving 65 miles per hour in a 50-mile-per-hour zone on Route 13 in the Village of Cayuga Heights. At trial, the Trooper testified to the defendant’s speed. The People also introduced a speedometer deviation record to prove the reliability of the speedometer used to clock the defendant’s speed. The defendant did not object to the admission of the speedometer deviation record at trial.

    Procedural History

    The defendant was convicted of speeding in a Court of Special Sessions. The County Court reversed the conviction, finding that the prosecution failed to disprove the applicability of an exception to the general speed limit and that the speedometer deviation record was improperly admitted. The People appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the prosecution must present proof of the absence of any signs allowing a speed in excess of 50 miles per hour to establish a violation of Vehicle and Traffic Law § 1180(b).
    2. Whether a speedometer deviation record is admissible as evidence to prove the reliability of the speedometer used to clock the defendant’s speed.

    Holding

    1. No, because the prosecution is not required to prove the absence of signs but only that higher limits have not been promulgated. The court is required to take judicial notice of the Official Compilation of Codes, Rules and Regulations, so if that compilation shows no higher speed limit has been authorized for the location, the prosecution has met its burden.
    2. Yes, because a speedometer deviation record is admissible as a business record under CPLR 4518(a), provided an appropriate foundation is laid demonstrating that the record was made in the regular course of business and that it was the regular course of business to make such a record.

    Court’s Reasoning

    Regarding the first issue, the court reasoned that Vehicle and Traffic Law § 1180(b) prohibits driving in excess of 50 miles per hour except when higher speed limits have been established. The court noted that while Vehicle and Traffic Law § 1620(a) states that the absence of signs indicating a higher speed limit is presumptive evidence that the Department of Transportation has not established a higher limit, this is not the only way to prove that no higher limits have been authorized. The court emphasized that under CPLR 4511(a), courts must take judicial notice of the Official Compilation of Codes, Rules and Regulations. Since this compilation listed no changes to the 50-mile-per-hour speed limit for the Village of Cayuga Heights, the prosecution met its burden of proof.

    Regarding the second issue, the court reasoned that while the defendant did not object to the introduction of the speedometer deviation record at trial, the court would address the issue for guidance. The court determined that the record is considered hearsay but admissible under the business entry exception to the hearsay rule. CPLR 4518(a) allows the admission of records made in the regular course of business if it was the regular course of such business to make such a record. The court distinguished People v. Grant, stating, “Of course, records prepared solely for the purpose of litigation should be excluded… However, if there are other business reasons which require the records to be made, they should be admissible.” The court found that speedometer tests are often made at regularly scheduled intervals and records are kept merely as memorials of the fact that tests were made and the results. Therefore, the records are admissible as they were not made solely for litigation.

    The court concluded that the County Court’s order should be reversed and the case remitted for determination of the factual questions.

  • Mayor, etc., of New York v. Second Ave. R.R. Co., 102 N.Y. 572 (1886): Business Record Exception to Hearsay

    Mayor, etc., of New York v. Second Ave. R.R. Co., 102 N.Y. 572 (1886)

    A business record is admissible as evidence of a fact if the record was created in the ordinary course of business, based on reports of employees who had a duty to report accurately, and the person who made the entry testifies that they correctly entered the information.

    Summary

    The City of New York sued the Second Avenue Railroad Company to recover costs for street repairs the city performed after the Railroad failed to do so, as required by a covenant. The city introduced a time-book and material account to prove the expenses. The Court of Appeals held that the time-book was admissible under a business records exception to the hearsay rule because it was based on daily reports from foremen with a duty to accurately report hours worked, which were then entered into the time book by someone who testified to entering the data correctly. This case clarifies the business records exception to the hearsay rule.

    Facts

    The Second Avenue Railroad Company had a covenant to pave and repair streets “in and about the rails.” The City of New York notified the Railroad that repairs were needed, but the Railroad failed to make them. The City then made the repairs itself and sought to recover the costs from the Railroad. To prove the amount of labor and materials used, the City introduced a time-book and a written account of materials used. The time-book was kept by a foreman, Wilt, who recorded the names and times of the workers based on reports from gang foremen. Wilt visited the site twice a day to verify the reports. The gang foremen did not see Wilt’s entries but testified they accurately reported the information.

    Procedural History

    The trial court directed a verdict for the City, including the sum expended on labor and materials. The Railroad appealed, arguing that the City didn’t prove the “reasonable cost” of repairs and that the time-book and material account were inadmissible hearsay. The New York Court of Appeals affirmed the judgment for the City, holding the evidence was properly admitted.

    Issue(s)

    1. Whether the measure of damages for breach of a covenant to repair is the reasonable cost of repairs, and if so, was there sufficient evidence to support the directed verdict?

    2. Whether a time-book and material account, based on reports from others, are admissible as evidence of the labor and materials used in repairs.

    Holding

    1. Yes, because in the absence of evidence to the contrary, the sum actually expended by the covenantee in making repairs is prima facie evidence of the reasonable cost of the work.

    2. Yes, because a time-book is admissible if it’s based on daily reports of foremen who had charge of the men and a duty to report accurately, and the person who made the entries testifies that they correctly entered them.

    Court’s Reasoning

    The Court reasoned that while the measure of damages is the reasonable cost of the work, the sum actually expended by the city is prima facie evidence of that cost, absent any evidence of fraud, recklessness, or extravagance. Regarding the admissibility of the time-book, the Court recognized that the foreman who kept the book did not have personal knowledge of all the hours worked, but relied on reports from gang foremen. However, the Court created an exception to the hearsay rule, reasoning, “We are of opinion that the rule as to the admissibility of memoranda may properly be extended so as to embrace the case before us. The case is of an account kept in the ordinary course of business, of laborers employed in the prosecution of work, based upon daily reports of foremen who had charge of the men, and who, in accordance with their duty, reported the time to another subordinate of the same common master, but of a higher grade, who, in time, also in accordance with his duty, entered the time as reported. We think entries so made, with the evidence of the foremen that they made true reports, and of the person who made the entries that he correctly entered them, are admissible.” The Court emphasized the importance of the record being made in the ordinary course of business, with a duty to report accurately. The court found that this practice was necessary for conducting business, and safeguards against inaccuracy were sufficient to justify admission of this type of evidence.