
    Isidor Greitzer, Respondent, v. Samuel Ershowsky, Appellant.
    (Supreme Court, Appellate Term,
    June, 1905.)
    Evidence — Documentary evidence — Opinion on former trial not evidence.
    An opinion of the Appellate Term, written upon the reversal of a former judgment in the same case, is not evidence; and its introduction as such, upon a new trial of the case, where it contains a statement to the effect that the conclusion of the justice upon the former trial was amply supported by the evidence, is error, for which the judgment should be reversed.
    Appeal by the defendant from a judgment rendered in ffavor of the plaintiff in the Municipal Court of the city of New York, ninth. district, borough of Manhattan.
    House, Grossman & Vorhaus (Charles Goldzier, of counsel), for appellant.
    Eugene I. Yuells, for respondent.
   Scott, J.

This action was brought to recover for a balance claimed by the plaintiff to be due as a third installment for work, etc., under a building contract made between the parties and for extra1 work and material claimed to have been done and furnished by the plaintiff. The installment claimed was due upon the completion of the work and whether or not the plaintiff had fully performed the contract on his part, and whether he had done extra work were questions contested upon the trial. It appears that one Siegel was .a subcontractor of the plaintiff, that Siegel had filed a mechanic’s lien upon the defendant’s premises for a sum claimed to be due him, and that he had brought an action to foreclose such lien, in which action he had recovered a judgment in the Municipal Court which, upon appeal to this court, had been reversed. An opinion had been wri1> ten upon such reversal and the plaintiff .herein offered such opinion in evidence and over the objection of defendant’s counsel the same was received. The opinion contained, among other things, these words: . “ The performance of plaintiff’s work was not seriously disputed, and the conclusion of the trial justice that there was an amount due from the defendant to the principal contractor (the plaintiff in this action) sufficient to cover the plaintiff’s claim is amply supported by the evidence.” The introduction of this opinion was error. It in no sense constituted evidence, and was evidently offered to show that there was a certain sum due this plaintiff from the defendant, and also as showing that the performance of the contract upon which this plaintiff based his claim had been established in the former action.. Opinions form no part of the record and the statements- appearing therein cannot be considered unless the-judgment, appealed from so refers to the opinion as to make it a part of the record. Koehler v. Hughes, 148 N. Y. 507. This-opinion undoubtedly had great weight with the learned trial justice, and it cannot be said that the proof on the part of the plaintiff was so clear as to be beyond dispute. There-should be a new trial.

Dugro and MacLean, JJ., concur.

Judgment reversed and new trial granted, Avith costs to-appellant to abide event.  