The New York Dyeing and Printing Establishment, Appellant, v. Robert H. Berdell, Respondent

The New York Dyeing and Printing Establishment, Appellant, v. Robert H. Berdell, Respondent. (Argued December 22, 1876 ; decided January 16, 1877.) This action was brought to recover certain alleged loans of money made by plaintiff to defendant. The latter denied that the loans were made by plaintiff and alleged payment. One of the items, $20,000, plaintiff’s evidence tended to show was borrowed upon collaterals which had been returned; defendant testified that he borrowed it of Mr. Marsh, plaintiff’s president, individually, and deposited securities with him as collateral and that he subsequently paid Marsh, and took up the collaterals. Marsh was dead at the time of the trial. Defendant’s counsel offered to prove by the check books and returned checks of Marsh, that the said loan from the latter, individually, “ was actually made, by the entries in said books and the check or checks for the same, and that such loan has been paid and discharged.” This was objected to by plaintiff’s counsel and objection sustained. Held, error; that it could not now be'determined or claimed, that the fact that the loan was from Marsh, individually, could not be proved by the check books and checks, as this cannot be said to be impossible ; that if the books when offered in evidence should not prove or tend to prove the facts, they could then have been excluded; and that for the purpose of ruling upon the offer the court was bound to assume that the evidence would establish the facts offered to be proved; also, that it mattered not that defendant had testified to the facts contained in his offer ; he had the right to fortify his case hy the additional evidence. D. B. Eaton for the appellant. Charles Tracy for the respondent. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance of order and for judgment absolute against plaintiff on stipulation. All concur except Miller, J., not voting. Order affirmed, and judgment accordingly.