
    Israel Hyman, Respondent, v. Joseph F. Cohen, Appellant.
    Supreme Court, Appellate Term, First Department, •
    December 15, 1924.
    Evidence — hearsay — witness testified of his own knowledge to facts contained in memorandum of information obtained from others — motion to strike out testimony should have been granted.
    Motion by the defendant to strike out the testimony of the plaintiff on the ground that it was hearsay should have been granted since it appears that the plaintiff testified, as of his own knowledge, to facts contained in a memorandum which contained information that he had obtained from other persons, and that the paper was not used to refresh his recollection nor was it a contemporaneous record kept by him.
    
      Appeal by defendant from a judgment of the Municipal Court of the City of New York, Borough of The Bronx, Second District, in favor of plaintiff for $324.75 after a trial by a judge without a jury.
    
      Shaine & Weinrib [Edward C. Weinrib of counsel], for the appellant.
    
      Isaac Hyman, for the respondent.
   Per Curiam:

In an action for commissions on the sale of defendant’s goods, plaintiff testified to the amounts of sales and the names of customers upon whose orders he claimed commission. On cross-examination it appeared that he kept no books or other contemporaneous records of sales made on defendant’s behalf, but that he had a list of his customers. When difficulties arose between his employer and himself he went to the various customers and asked for the amount of goods bought and paid for. The figures thus obtained were the ones given in plaintiff’s direct examination as of his own knowledge. No objection was made to his use of the paper from which he read, but a motion was made to strike out all this testimony on the ground that it was hearsay. Plaintiff had no independent recollection of the facts, the paper was not used to refresh his recollection, nor was it a contemporaneous record kept by him. The motion should have been granted.

The judgment is reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Bijur, Wagner and Levy, JJ.  