
    John Burns, Respondent, v. Reuben E. Boland, Appellant.
    
      Appeal — what was decided below is not established by the opinion— deductions of an • affiant presumed to be from a paper not produced, and not from, oral statements of a party.
    
    Upon an appeal from an order the Appellate Division cannot advert to the opinion of the court below in order to ascertain what has been decided.
    Deductions made by an affiant from papers which he fails to produce have no probative force.
    Where an affidavit used upon a motion alleged “that deponent thereafter had several interviews with the defendant, Beuben E. Boland, at one of which the said Boland exhibited a written statement of the account of said sales to Skid-more and collections on account thereof, purporting to be taken from the books of the said Boland, that from the said statement the said Boland admitted to deponent that he had received from the said Skidmore the sum.of sixty-eight and 78 /100 dollars, 868.78, in excess of the amount which he had remitted to the plaintiff after deducting all items of commissions and discounts,” the court considered that the admission mentioned in the affidavit was a deduction drawn by the deponent from the statement of account and not from anything that Boland orally stated at the time of the exhibition of the account.
    Laughlin, J., dissented.
    Appeal by the defendant, Reuben E. Boland, from an order of the Supreme Court, made at the New York Special Term and entered in' the office of the clerk of the county of New York on the 26th day of December, 1901, denying the defendant’s motion to vacate an order of arrest theretofore granted in the action.
    
      W. Benton Crisp, for the appellant.
    
      Charles K. Carpenter, for the respondent.
   Van Brunt, P. J.:

It appears from the opinion of the court below, which was handed down at the time of the denial of the motion to discharge the defendant from arrest, that such motion would have been granted had it not been for the fact that the court was of the opinion that Mr. Carpenter ■ in his affidavit swore to an oral admission'upon the part of the defendant that he had received sixty-eight dollars and seventy-eight cents in excess of the amount which he had remitted to the plaintiff, after deducting all items of commissions and disbursements. Under these circumstances, we need consider only the question as to this alleged-admission. While it is true that we cannot advert to the opinion of the court in order to ascertain what has been decided, it seems hardly necessary to reconsider questions in the solution of which we concur ; and, therefore, we need only examine the affidavits upon the point as to whether Mr. Carpenter’s affidavit bears the construction put upon it by the learned judge below. It seems to us, upon a reading of that affidavit, that the true interpretation of the language used is that Mr. Carpenter is averring facts which he learned from the statement of account submitted to him by the defendant, rather than giving any oral statement which the defendant made to him in connection with such statement of accounts. Of course, the rule is well settled that deductions made by an affiant from papers which he fails to produce have no probative force, because such deductions are the mere conclusions of the affiant, and it is a question for the court to determine from the papers as to whether such conclusions are properly drawn, which it cannot do in their absence.

Mr. Carpenter states as follows: “ That deponent thereafter had several interviews with the defendant Reuben E. Boland at one of " which the said Boland exhibited a written statement of the account of said sales to Skidmore and collections on account thereof, purporting to be taken from the books of the said Boland. That from the said statement, the said Boland admitted to deponent that he had received from the said Skidmore the sum of sixty-eight and 78 /TOO dollars ($68.78), in excess of the amount which he had remitted to the plaintiff after deducting all items of commissions and discounts.” It seems to be reasonably apparent that the admission is taken from the statement of account, and not from anything that the defendant orally stated. The language used is: “ That from the said statement, the said Boland admitted.” If the affiant was testifying to an oral admission, certainly this language would not have been used. As already stated, the admission sworn to is only “ from the said statement,” and not from anything that Boland orally stated at the time of the exhibition' of the account. This being, in our judgment, the necessary construction of the affidavit, it is clearly nothing but the conclusion of the affiant from papers which were presented to him, and of the contents of which the court is entirely ignorant. It is impossible, therefore, for the court to determine whether the conclusion of Carpenter was borne out by the statement submitted by Boland or not.

We think that the order of arrest should have been wholly vacated upon the ground that there was no legal evidence tending to establish a right to arrest. The order should be reversed with ten dollars costs and disbursements, and the order of arrest vacated, with ten dollars costs.

O’Brien, J., concurred; Patterson, J., concurred in result; Laughlin, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion to vacate order of arrest granted, with ten dollars costs.  