
    Baruch Bistritz, Respondent, v. The Star Fire Insurance Company of Louisville, Kentucky, Appellant.
    (Supreme Court, Appellate Term,
    June, 1907.)
    Examination of witnesses — Cross-examination — Eight of cross-examination— As to book containing entries used by witness to refresh his memory.
    Where the plaintiff, in an action upon a policy of fire insurance, refreshes his recollection as to the goods that were destroyed by reference to two pages of a memorandum book, which were in his handwriting, defendant has the right to ask upon cross-examination whether the entire book was in his handwriting.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.
    S. J. Rosenblum, for appellant.
    Feltenstein & Rosenstein, for respondent.
   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff for $519.41. The action was brought to recover upon the usual standard form of policy of fire insurance. As the judgment appealed from must he reversed because of an erroneous ruling upon an important question of evidence that was involved and the action must be retried, we do not think it necessary to review all the questions presented by this appeal. The appellant was not allowed sufficient scope in cross-examination. The plaintiff refreshed his recollection, as to the goods that were destroyed by fire, by reference to two pages of a memorandum book which pages were in his handwriting. On cross-examination, he was r.sked whether the entire booh was in his handwriting; and objection to this question was sustained, over the exception of the defendant. We think that the defendant clearly had the right to have the witness answer this question. If the witness answered that the book was not in his handwriting, it could not have been offered in evidence; but, if he answered that it was in his handwriting, and it contained matter relevant to the issue, it certainly would have been competent evidence against him. It is impossible for us to say that the defendant was not prejudiced by the ruling that was made, and the judgment should be reversed.

Present: Gildersleeve, Seabury and Platzek, JJ.

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