Opinion
December, 1898.
Jacob Manheim, for appellants.
Warren W. Foster, for respondent.
Although the complaint alleges that the plaintiff's assignor was induced to surrender the note in suit to the makers before maturity, upon receiving from them their check upon a bank account which had been and remained totally withdrawn, and that they had falsely represented the check to be good and the funds in bank sufficient to meet it, yet not a particle of legal proof was offered which tended to establish either of these allegations in any degree. The postal card written to the plaintiff's assignor by the teller of the bank wherein deposit of this check was made to the effect that the drawers had closed their account the day before the check was dated, and the teller's memorandum attached to such check that it was returned by the drawee for the same reason, admitted in evidence against the appellants' objections and exceptions, were not competent evidence of the matters therein stated. Churchman v. Lewis, 34 N.Y. 444; Greenfield v. People, 85 id. 75; McIlhargy v. Chambers, 117 id. 532. Such proof could only be made by the oral testimony of living witnesses, or by other recognized modes of establishing facts, and the evidence so received was hearsay and wholly inadmissible.
There being a total failure of proof in respect to material allegations of the complaint, the judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event.
Present: BEEKMAN, P.J., GILDERSLEEVE and GIEGERICH, JJ.
Judgment reversed and new trial ordered, with costs to appellants to abide event.