
    Simon Frindel, Respondent, v. Nochem Maier Schaikewitz, Appellant.
    
      Witness—refreshing memory by a copy of a memorandum—how far the defendant, after he has rested, will be allowed to contradict the plaintiff rests in the discretion of the court. -
    
    Where a lender of money testifies, in an action brought by him for its recovery, that he loaned the defendant, the money at Odessa, Russia-, and that he copied the items of the loans from a larger book left by him at Odessa, he may properly be permitted to use the copy as a means of refreshing his recollection as to the items.
    
      It is within the discretion of the court to determine how far the defendant, after, he has rested his case, shall be permitted to give evidence tending to contradict. that of the plaintiff.
    Appeal by the defendant, Hochem Maier Scliaikewitz,. from a judgment of the Supreme Court in favor of the plaintiff, entered in, the office of the clerk of the county of Kings on the 20th day of February, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of March, 1896, denying' the defendant’s motion for a new trial made upon the minutes.
    
      Abraham H. Sarasohn, for the appellant.
    
      M. Hallheimer, for the respondent.
   Bradley, J.:

The parties,, in 1883 and 1884, were residents of the city of Odessa, in the Empire of Russia. The plaintiff came from Russia ■ to Brooklyn in the year 1887, and the defendant came in 1889. The plaintiff alleges that, in the years 1883 and .1884, at Odessa, he - loaned to the defendant 536 roubles and 60 kopeks, and that in 1889 he paid $24 for a passage ticket for the defendant to Hew York and lent him the further sum of 20 roubles, at his request. His testi-, mony is to the same effect.

The defendant by his testimony denies borrowing any money of the plaintiff in Odessa, and, admitting that the plaintiff advanced the money to pay for his passage ticket and loaned him the twenty roubles, testifies that he repaid the súme to the plaintiff, whose evidence is to the effect that no part of such sum has been paid. There ■ is not much evidence corroborative of that of either party. The case was- fairly submitted by the charge of the court t.o the jury. The result was a verdict for the plaintiff for the amount of his alleged claim and interest. Upon the trial the plaintiff had a statement in items cf his alleged loans made at Odessa, consisting of about twenty items, in a small book. His testimony is that he copied those items from a larger book left by him at Odessa. There was no error in permitting him to refer to this statement to refresh his recollection of the items of loans, which his evidence tended to prove he had made to the defendant. (Howard v. McDonough, 77 N. Y. 592.)

After the defendant had rested, the plaintiff was recalled in his own behalf and gave evidence contradicting that of the defendant, to the effect that he had paid to the plaintiff the amount which he so recognized as having been advanced to and for him. The defendant’s counsel then, on the cross-examination of ¿the plaintiff, asked him, in effect, how, not understanding the English language when at Odessa, he, in making the copy of the entries in the book in the Russian language, came to use the word “ rent ” at the place where and as it appeared in the small book. The answer was that rent is in the Russian language and in the German language and in the Jewish language.” Thereupon a witness was called ón the part of the defendant, and after stating that he understood the Russian language was asked to give the Russian word for “ rent.” The objection taken by the plaintiff’s counsel was sustained by the court and exception taken. This was not error. As the defendant had rested his case it was discretionary with the court to permit him to introduce the excluded evidence thus called for. It may be assumed that if the statement which.the defendant sought to controvert had been called out and the contradicting evidence offered before the defendant rested it would have been received by the court. This is evident from the remark made by the learned justice to the effect that he would not receive it at that late stage of the trial. While the result which should have followed the submission of the casé to the jury appears upon the evidence to have been one of much doubt, the question was one of fact peculiarly for the jury and we can see üo occasion to interfere with the conclusion reached by them.

The judgment and order should, therefore, be affirmed.

All concurred.

Judgment and order affirmed, with costs.  