
    Edmund S. Geer, Appellant, v. The New York City Railway Company, Respondent.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Examination of witnesses—Refreshing the memory—Use of verified complaint.
    In an action against a street railway company to recover a penalty for refusing to give a transfer, the plaintiff, upon testifying that he cannot tell the date, car, etc. without refreshing his memory, may consult the complaint, verified by him on the day the transfer was refused, provided that, when so refreshed, he can testify to the facts as of his own knowledge.
    Appeal by the plaintiff from a judgment dismissing the complaint rendered in the Municipal Court of the city of New York, second district, borough of the Bronx.
    The action was for a penalty for refusing to give a transfer.
    E. V. R. Ketchum, for appellant.
    William E. Weaver, for respondent.
   Clinch, J.

Plaintiff was asked: “On the 12th day of January, 1906, did you board a car going north at Whitehall street ? Before answering he attempted to consult a memorandum for the purpose of refreshing his memory. To this defendant objected. It appeared that the plaintiff had made a memorandum of the facts; that he had taken that memorandum to his attorney in whose office a copy was made; that subsequently the original was lost and that the copy he desired to consult in court was made from a copy in his attorney’s possession. Plaintiff stated that he could not testify as to the date, car, etc., without refreshing his memory. The court refused to allow him to considt this memorandum. Plaintiff’s . attorney then asked that he be allowed to refresh his memory from the complaint, which was verified on the day when the transfer was refused, his action being to recover a penalty for such refusal. Plaintiff swore that he signed the complaint after reading it over and knew it to be true at the time he signed it. He was then asked: “In looking at that complaint and refreshing your memory by that can you tell me on what day you took this trip ? ” An objection to this question was sustained’ and the complaint was dismissed. It is well settled that, for the purpose of refreshing his memory, a witness may consult any memorandum made at the time of a transaction or occurrence, whether made by himself or another, provided that, when his memory is so refreshed, he must testify to the facts as being within his own knowledge. It is evident that a complaint, sworn to by the witness on the very day of the occurrence concerning which he desired to refresh his memory, is properly within this rule.

Gildebslebve and Davis, JJ., concur.

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