
    Isaac Zimmerman, Respondent, v. Ike Shapiro, Appellant.
    (Supreme Court, Appellate Term,
    June, 1907.)
    Evidence — Admissions — Self serving declarations — The general rule — Receipt hook kept by one’s partner.
    In an action for work, labor and services it was error to receive in evidence over defendant’s objection a receipt book in the handwriting of the plaintiff’s partner, and such error was not waived by the subsequent request of the defendant’s counsel that the book be shown to the jury.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of . Kew York, fourth district, borough of Manhattan.
    Oscar Englander, for appellant.
    Charles S. Rosenthal, for respondent.
   Per Curiam.

This action was brought to recover $165, for work, labor and services. The only issue contested upon the trial was as to whether the defendant had paid the plaintiff this amount. Several trivial grounds are urged for the reversal of this judgment which it is not necessary to consider. The record," however, discloses one serious error which calls for the reversal of this judgment. The plaintiff’s counsel offered in evidence a receipt book in the handwriting of the plaintiff’s partner. This book was received over the objection and exception of the defendant. Its admission was clearly error; and, in view of the sharp conflict in the testimony upon the issue of payment, it is impossible to say that the defendant was not prejudiced with the jury on account of its admission. The fact that, after the book had been marked in evidence, over the objection and exception of counsel for the defendant, the latter asked that it should be shown to the jury was not a waiver by him of the benefit of the exception which he had taken to its admission.

Present: Gildersleeve, Seabury and Platzek, JJ.

Judgment reversed and new trial ordered, with costs tr • appellant to abide event.  