Frederick W. Sperling, for appellant.
Joseph Levy, for respondent.
Plaintiff sued for the value of a case of coats delivered to defendant and alleged to have been lost through the criminal complicity of defendant's driver with certain other persons. Plaintiff has recovered the full amount of his claim, namely, the value of the shipment, $726.50, together with interest and costs.
It is unfortunate that after a prolonged trial this judgment must be reversed for material error in respect of proof of the value of the goods. When plaintiff's shipping clerk showed his inability to state the amount or character of the goods included in the shipment, there was introduced in evidence a paper alleged to be a copy made by the bookkeeper of an entry in the books which was alleged to have been made in turn from a shipping slip made out by the witness. It needs no citation of authority to demonstrate that no proper foundation, even under the most liberal construction, was laid for the introduction into evidence of this paper. See City of New York v. Second Ave. Co, 102 N.Y. 572.
Respondent claims that the error was not material, or at all events that appellant's counsel laid no stress on it, citing a remark made by appellant's counsel within a minute or so after the examination brought out this paper. Appellant's counsel said: "Well, I don't want to take up a lot of time over an immaterial issue." It is not clear to what counsel referred, but it is perfectly clear that he did not refer to adequate proof of this paper, for the next twelve pages of the record are replete with appellant's counsel's objections both to the introduction of the paper in evidence and to the use thereof by the witnesses for the alleged purpose of refreshing his recollection when the witness frankly conceded that his recollection was not refreshed, but that he would actually have to read the items from the paper. Moreover, to make appellant's counsel's position still clearer, at the close of the case his motion to dismiss was based "also upon the ground that the plaintiff has not properly established the items of damage; that the testimony introduced does not show the value of the merchandise that was lost.
It follows, therefore, that the judgment must be reversed and a new trial granted, with thirty dollars costs to appellant to abide the event.
GUY and COHALAN, JJ., concur.
Judgment reversed and new trial granted, with thirty dollars costs to appellant to abide event.