Butterworth v. Warth

17 Bosw. 624

Opinion

Bosworth, Ch. J.

I think the verdict is against evidence, if it be assumed that the evidence shows, that on the day on which, as the defendant testified, he left in the Island City Bank $300, to be deposited to his credit, the Bank’s balance account for the day showed an excess in its favor of $749.88. The bookkeeper testified that the footings in the book of the Bank produced, showed a deficiency against the Bank, of twelve cents. That was true, and only true because the items were erroneously footed. He testified in good faith, and his statement of the result shown by the books, was taken as the truth of the matter.

My conclusion at the trial was, and now is, that if this book had not been produced and the testimony given in relation to the fact above stated, which was given, the verdict would have been in favor of the defendant.

I'think a new trial should be granted on the terms of the defendant’s paying the costs of the trial, and that the costs of the subsequent proceedings be costs in the cause, and abide the event, (Kennedy v. The Harlem R. R. Co., 3 Duer, 659.)

Ordered accordingly.