
    Myer Rosenberg, Respondent, v. Philip H. Klein, Appellant.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Witness — Refreshing memory from an original memorandum not permissible if he remembers the facts stated therein — Ex parte entry, as to the facts, inadmissible.
    Where a witness has testified fully and positively upon the trial of an action as to the facts of a transaction, constituting the sole issue, without evincing any lack of memory in regard to them, it is erroneous for the court to permit him to go further and testify, against the objection of the opposite party, that he, about the time of the transaction, made an entry of it in a book, and admit the entry in the book in evidence, it appearing that the entry contained no facts additional to those to which the witness had testified and there being no proof that the opposite party had any knowledge of the entry.
    Appeal by the defendant from a judgment of the Municicipal Court of the city of New York, second district, borough of Manhattan, in favor of the plaintiff.
    Cohen & Cohen, for appellant.
    Aaron Morris, for respondent,
   Ebeedmah, P. J.

This action was brought by the plaintiff to recover the value of two pieces of silk sold to the defendant by the firm of Spielman & Co., assignors of one Rosenfield, the assignor of plaintiff. The delivery of four pieces of silk was admitted by the defendant, but he claimed that he had returned them to Spielman & Co. on or about the day of the purchase, and the only question at issue between the parties is whether all four or only two pieces of the silk were returned. On the trial, one Just, a witness called by the plaintiff, testified that at the time the silk was claimed to have been returned by the defendant he was in the employ of Spielman & Co., that he remembered the return of a package received by his employers from the defendant, that he opened the package, and that it contained but two pieces of silk. The .package evidently was the one in which the defendant claimed he had returned the four pieces of silk purchased by him. The witness was then allowed to testify, over the objection of the defendant, that he made an entry in a book of the return of two pieces of silk, and the book containing such entry was offered and received in evidence, to which the defendant also objected. The witness testified fully and positively to the facts contained in the entry made by him, and the entry contained no more than the facts embodied in his testimony, and he evinced no lack of memory regarding the facts stated by him, nor was it intimated that his memory was at fault. Although the entry in such a book was undoubtedly an original memorandum, nevertheless, there was no reason or necessity for resorting to it, and it does not appear that the defendant had any knowledge of such entry, and it did appear that the witness remembered all the facts contained therein and to which the entry had reference.

It was error to permit such entry to be introduced in evidence under the circumstances disclosed herein. Textile Pub. Co. v. Smith, 31 Misc. Rep. 271; National Ulster Co. Bank v. Madden, 114 N. Y. 280, 285; Cullinan v. Moncrief, 90 App. Div. 538, 541; Driggs v. Smith, 36 N. Y. Super. Ct. 283.

The case was sharply litigated and the testimony pretty evenly balanced. It was tried by a jury, and we cannot say that the error in so admitting the book entry was not prejudicial to the defendant’s interest. The book was taken into the jury-room and presumably examined, and we cannot regard the admission of this' book in evidence as harmless.

Leventritt and Greenbatjm, JJ., concur.

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