1 WRITTEN EVIDENCE- · ADMISSIBILITY IN CONNECTION 2. EVIDENCE (§ 377*) · WITH ORAL TESTIMONY. In an action on an open account for plumbing work and supplies, plaintiff endeavored to prove the items of the account from his own ledger, but it appeared that it had not been written up from his own knowledge, and that the books were written up in part by his wife and in part by a bookkeeper, and there was no evidence that they kept the books correctly, or that the entries were in accordance with data furnished by plaintiff. A bill of particulars was prepared by the bookkeeper, who was not produced to show that it was a true copy of the books. For much of the work done plaintiff accepted slips from his workmen, and there was no proof that they were true. Held, that there was no proper foundation for the admission of the bill of particulars as a summary of plaintiff's evidence, especially where a question asked plaintiff by the court as to whether he could swear that each item was furnished or performed was not answered, and there was no evidence that the charges were fair and reasonable. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 1647; Dec. Dig § 377.*] Appeal from City Court of New York, Trial Term. Action by Robert Drennan against Walter F. Burns and another. From a judgment for plaintiff, after a verdict by a jury, defendants appeal. Reversed, and new trial ordered. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Hastings & Gleason, of New York City, for appellants. COHALAN, J. [1] This action was brought on an open account. to recover the sum of $978.44 for services rendered and materials furnished. The defendant made various payments to the plaintiff for work done, and alleged that full payment had been made. Plaintiff's bill of particulars consisted of 11 pages of a variety of items. The only testimony offered in support of the claim was that of the plaintiff. It was, of course, incumbent upon him, in an account for plumbing work and supplies furnished in connection therewith, running from the 14th day of November, 1906, to the 16th day of March, 1911, to prove by competent evidence the furnishing of the materials, the performance of the labor, and that the prices charged were fair and reasonable. [2] The court permitted the plaintiff to complete his proof by the admission of the bill of particulars, and in this language: "The Court: Have you looked over that bill of particulars recently? "The Witness: I have, and verified it. "The Court: Are you able to state now here, having explained it, can you swear as to each item having been either furnished as a material or put in as laber for the plant on this job? Look through it and see, and, if you can, I will admit the entire account in evidence as a summary of his evidence. "Plaintiff's Counsel: For that purpose I offer the bill of particulars in evi dence. "The Court: Yes; I will receive it." It will be observed that this question was not even answered by the witness. The plaintiff had endeavored to prove the items from his For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 te date, & Rep'r Indexes own ledger, but it appeared that it had not been written up from the witness' own knowledge. The books were written up in part by the wife of the plaintiff and in part by a bookkeeper. There was no evidence that they kept them correctly, or that the entries were in accordance with the data furnished by the plaintiff. Mayor, etc., of New York v. Second Ave. R. R. Co., 102 N. Y. 572, 7 N. E. 905, 55 Am. Rep. 839; Cobb v. Wells, 124 N. Y. 77, 26 N. E. 284. The bill of particulars was prepared by the bookkeeper, who was not produced to show that it was a true copy of the books. As a matter of fact, for much of the work done, the plaintiff accepted slips from his workmen, and there was no proof to show that these slips were true. Moreover, there was no evidence to show that the charges were fair and reasonable. It may well be that the plaintiff has a cause of action, but he should be held to a reasonable degree of proof. No proper foundation, in my opinion, was laid, over objection, for the admission of the bill of particulars in evidence. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. GRIFFIN v. MCKENNA et al. (Supreme Court, Appellate Term, First Department. December 4, 1914.) 1. MASTER AND SERVANT (§ 41*)-BREACH OF EMPLOYMENT CONTRACT-COMPUTATION OF DAMAGES. Where, in a salesman's action for breach of an employment contract, which has been breached by his employer by discharging him, it appears that plaintiff made two trips, and also made sales while in the city, it is error to estimate his damages only on the basis of commissions earned on the first trip, without taking into account the second trip and his city sales. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 12, 50-53; Dec. Dig. § 41.*] 2. MASTER AND SERVANT (8 43*)-BREACH OF EMPLOYMENT CONTRACT-DAMAGES RECOVERABLE—QUESTION FOR JURY. In a salesman's action for the value to him of a contract breached by his employer, it was error to instruct that plaintiff, if entitled to recover, was entitled to $280; the question of the damages to be awarded being for the jury. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 57, 58; Dec. Dig. § 43.*] Appeal from Municipal Court, Borough of Manhattan, Fifth Dis trict. Action by William J. Griffin against Alfred J. McKenna and another, copartners doing business as the Toque Company. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Hugo S. Mack, of New York City (William Kaufman, of New York City, of counsel), for appellants. Finis E. Montgomery, of New York City, for respondent. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 150 N.Y.S.-5 COHALAN, J. Plaintiff sues to recover damages for the alleged breach of a contract of employment. The complaint alleges that the defendants engaged the plaintiff as a traveling salesman for a period of six months, to commence on the 5th day of January, 1914. There is a dispute as to terms of the employment and as to the time which the agreement had to run. The defendant was discharged on the 18th day of March, 1914, and he claimed damages in the sum of $500. The plaintiff testified that he was to receive $30 per week and traveling expenses; that he made one trip of 19 days, selling $881 worth of merchandise, or $46.36 worth of goods per day; and that he made one other trip of 3 days' duration. It appeared that the plaintiff received $230 on account of traveling expenses and $30 each week in salary— in all, the sum of $530. There was testimony that both the drawing account and the road expenses were to be deducted from what he earned on the goods sold. [1, 2] The plaintiff elected to recover damages on what he would have earned in commissions, had he remained until the expiration of the contract, instead of to recover his alleged drawing account of $30 per week until the end of the same period. The court charged the jury that, in the event of a recovery, the plaintiff would be entitled to receive the sum of $280; that the plaintiff had sold on his first 19 days' trip on the road $881 worth of merchandise, his average daily sales being $46.37, upon which his commissions, at the rate of 10 per cent., would be $4.63; that the contract period was 176 days; hence the plaintiff would have earned about $810, from which there should be deducted the sum of $530, the amount received from the defendants, leaving a balance of $280. This direction in the charge constituted error. The computation did not take into account the second trip, nor did it provide for any orders that the plaintiff might have taken while in the city. In view of the fact that the plaintiff was seeking to recover the value of the contract to him, it was for the jury to determine the damages to be awarded for the breach thereof. Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205, 4 N. E. 264, 54 Am. Rep. 676. Moreover, the plaintiff, in his bill of particulars, stated that the damages sustained by him in the loss of commissions amounted only to the sum of $228.16. Judgment reversed, and new trial ordered; costs to appellants to abide the event. All concur. (164 App. Div. 650) SEELY V. SEELY. (No. 246-63.) (Supreme Court, Appellate Division, Third Department. November 25, 1914.) 1. LIMITATION OF ACTIONS (§ 100*)-TRUSTS (§ 354*) -DISCOVERY OF FRAUDDEEDS RECORD-EFFECT-FOLLOWING TRUST PROPERTY. Under the recording act, a recorded deed is not constructive notice to an owner in possession, who does not claim title through any party to the deed; and hence, where plaintiff purchased land and intrusted the taking of the deed to his brother, defendant's husband, and the latter fraudulently took the deed in the name of defendant, and caused it to be re*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes corded, and told plaintiff that the deed was kept in a safe, and defendant, after the death of the husband, conveyed the land to a bona fide purchaser, plaintiff was entitled to maintain a suit to impress a trust on the proceeds in the hands of defendant. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. § 100;* Trusts, Cent. Dig. §§ 527, 528; Dec. Dig. § 354.*] 2. LIMITATION OF ACTIONS (§ 177*)-PLEADING AS DEFENSE-ANSWER. The plaintiff, in an equitable action to impress a trust, was not required to anticipate the plea of the statute of limitations, or to state facts or circumstances which might avoid the effect of such plea, as the statute must be raised by answer. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 663-666; Dec. Dig. § 177.*] 3. PLEADING (§ 166*)-MATTERS DEEMED CONTROVERTED. Affirmative matters alleged in the answer, not as a counterclaim, are deemed controverted. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 321-328; Dec. Dig. § 166.*] 4. PLEADING (§ 350*)-MOTION FOR JUDGMENT ON PLEADINGS-EFFECT. On defendant's motion for a judgment on the pleadings, the facts stated in the complaint are deemed to be true, and affirmative defenses set up in the answer, otherwise than as a counterclaim, cannot aid him. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1053, 1054, 1070– 1077; Dec. Dig. § 350.*] 5. TRUSTS (§ 359*)-NATURE OF SUIT TO IMPRESS TRUST. Plaintiff purchased land and intrusted the taking of the deed to his brother, defendant's husband, and the brother fraudulently took the deed in the name of defendant, who fraudulently colluded with her husband in the matter, and the husband told plaintiff that he was keeping the deed for plaintiff in a safe. After the death of her husband, defendant conveyed the land to a bona fide purchaser. Held, that a suit by plaintiff to impress a trust on the proceeds of the sale by defendant was equitable in its nature, though the complaint also demanded a money judgment. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 554, 565, 566; Dec. Dig. § 359.*] 6. LIMITATION OF ACTIONS (§ 100*)-ACTION Based on Tort. An equitable action seeking a money judgment, not as damages, but as a substitute for land upon which plaintiff might have impressed a trust, had not defendant sold it to a bona fide purchaser, was within Code Civ. Proc. § 382, subd. 5, as an action to procure a judgment for money on the ground of fraud, and the statute did not begin to run until plaintiff's discovery of the facts constituting the fraud. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. § 100.*] Woodward, J., dissenting. Appeal from Trial Term, Tioga County. Action by Obed A. Seely against Mary E. Seely. From a judgment dismissing his complaint on the merits, plaintiff appeals. Reversed, and new trial granted. Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ. Arthur G. Adams, of Ithaca, for appellant. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes JOHN M. KELLOGG, J. [1] The complaint shows that in March, 1888, the plaintiff conveyed his Newfield farm to his father upon a secret trust, the title to be conveyed to the plaintiff upon request, and that the father, in August, 1888, conveyed the farm, without the plaintiff's knowledge, to his son S. Alfred and his brother, upon condition that they would observe the trust; they having knowledge of all the facts, and the plaintiff being in possession of the farm. In March, 1900, the plaintiff arranged to trade the farm for the Tioga county farm, and his brothers agreed to convey it to the owner of the Tioga farm, and the latter was to convey that farm to the plaintiff. Said S. Alfred Seely looked after the business in causing the deeds to be made, and represented to the plaintiff that the deed had been made to him and that he was retaining it in his safe for plaintiff. This statement was false, as the deed was made to the wife of S. Alfred, who was acting in collusion with her husband and knew all the facts, and received it either to defraud the plaintiff or charged with carrying out the trust. Relying upon the fact that the deed was in his name, the plaintiff agreed with S. Alfred that he might cut from the farm the growing timber thereon if he would build a new barn upon the premises, fix the fences, and repair the place, which he was doing at the time of his death, and the work was continued by the defendant, his widow, thereafter. The defendant recently sold the farm to a purchaser in good faith, when she ascertained that the plaintiff was about to bring an action to impress a trust thereon, and by her fraudulent acts plaintiff has been damaged $4,000. These allegations being admitted, the plaintiff is entitled to some relief. The facts show that as against the defendant the plaintiff was the equitable owner of the farm, to her knowledge, and that she recently conveyed the farm to a purchaser in good faith for the purpose of depriving him of his rights therein. The fact that the deeds were recorded gave them no additional force as against the plaintiff. A recorded deed, under the recording act, is constructive notice to subsequent purchasers and incumbrancers. It is no notice to the owner in possession, who does not claim title through any party to the deed. There is nothing in the complaint to indicate that the plaintiff had knowledge that the deed was not in his name as agreed until the defendant sold the farm. [2] The statute of limitations must be raised by answer. In the complaint the plaintiff need not anticipate the plea of the statute, and need not state facts or circumstances which may avoid the effect of the plea, if made. [3, 4] Affirmative matters alleged in the answer, not as a counterclaim, are deemed controverted. Upon an application by defendant for judgment upon the pleadings, the facts stated in the complaint are deemed to be true, and affirmative defenses set up in the answer, otherwise than as a counterclaim, cannot aid him. [5, 6] In any event, taken in its most favorable aspect to the pleader, the inference is present that the plaintiff had no knowledge that the deed stood in the name of the defendant until she was about to sell the farm. The complaint shows facts tending to show that the plaintiff could have impressed a trust upon the farm in the hands of |