Carroll v. Davis , 9 Abb. N. Cas. 60 ( 1879 )

By the Court;^*—Larbemore, P. J.—[Orally.]

We are unanimously of opinion, that this evidence is not testimony to a personal transaction or communication, within the meaning of the statute. Notice to produce the book of account was given, and it was not produced. The proper preliminary evidence was, in our opinion, given to entitle plaintiff to give secondary evidence of the contents of the book. The plaintiff’s own testimony to entries in the handwriting of the deceased—known to the witness to be his hand writing— which he saw in the book during the lifetime of the deceased, was competent secondary evidence of the entry.

[Ruling on the weight of evidence is omitted.]

Judgmént affirmed, with costs.

* Present—Larremore, P. J., and J. F. Daly and Van Hoesen, JJ.