Roberge v. Bonner , 88 N.Y.S. 91 ( 1904 )

Hatch, J.

(dissenting)

I dissent from the prevailing opinion in this case, for the reason that upon the evidence a case was presented as to the existence of the contract which required its submission to the jury. Upon such question the entries made by Mr. Bonner in his memorandum book were competent evidence and bore upon the vital questions in the case. The exclusion of such evidence, therefore, constitutes reversible error.

We are not now concerned with the question as to whether a recovery by the plaintiff can be sustained upon the evidence received, and that which was improperly excluded.

It will be time enough to consider such question after a verdict has been rendered in plaintiff’s favor, if that event ever happens.

I, therefore, think that the judgment should be reversed and a hew trial ordered, with costs to the appellant to abide the event.

Judgment and order affirmed, with costs.