
    Heyman Cohen, Appellant, v. Philip Simon et al., Respondents.
    Appeal from judgment upon verdict and order denying a new trial.
    Max D. Steuer, for appellant.
    L. J. Morrison, for respondents.
   Hascall, J.

The cause of action, the nonpayment of a promissory note for $700, was admitted, hut, in defense, was pleaded a discharge in bankruptcy by decree of the District Court of the United States for the Southern District of New York, upon proper proceedings therefor and actual knowledge by plaintiff for such proceedings.

At the close of the trial plaintiff moved to strike from the record certain exhibits, purported schedules in bankruptcy proceedings, as not only not duly proven, but, even if proven, not stating the facts concerning notices thereunder; and the refusal to grant such motion was excepted against. The case went to the jury, on the question as to whether or not plaintiff was served and had notice of the bankruptcy proceedings, and the finding was in favor of defendants. Aside from the contention of appellant that unproven documents were received in evidence, he also maintains that he is entitled to a new trial because he was refused permission, by the trial court, to call and have testify a witness, Jacob D. Cohen, the court asserting that his testimony would be mere repetition.

We think this ruling was error, the witness not being an expert, and one among a number of such called to testify as to opinion. In such ease the court, being apprised of the character and extent of the proposed testimony, may, in its discretion, limit the number of witnesses testifying to the same point; but, in the case at bar, such question did not arise, and, non constat, but what the testimony proffered would have satisfied that so-called admissions were never in fact made and certain alleged conversations had not taken place. At any rate it appears that appellant was not accorded reasonable opportunity, within the meaning of higher authority, to present his evidence. 138 N. Y. 548,129 id. 125.

We think that the purported records from the Federal court were received without ample proofs, however regular and genuine the papers might have appeared. We decide this appeal upon their admission, as well as the refusal to allow the witness to testify.

The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.

Delehanty, J.

(dissenting). The refusal of the trial justice to permit the recalling of the witness, Jacob D. Cohen, was not such an abuse of judicial discretion as warrants the reversal of the judgment in question. As that is the only error insisted upon the judgment in my opinion should be affirmed with costs.  