BRODY v. KATZ.
(Supreme Court, Appellate Term.
March 24, 1904.)
1. Appeal—Loss of Testimony—Affidavits.
Where, on appeal by defendant from the Municipal Court, it is shown that the testimony of defendant has been lost, the cause will not be decided on opposing affidavits as to what the evidence was—such affidavits raising an issue of fact—but the judgment will be reversed, and a new trial granted.
Appeal from Municipal Court,-Borough of Manhattan, Fifth District.
Action by Hyman A. Brody against David Katz. From- a judgment in favor of plaintiff, defendant appeals. Reversed.
Argued before FREEDMAN, P. J„ and SCOTT and BLANCHARD, JJ.
Rosenthal & Brown, for appellant.
H. S. Fried, for respondent.
*453PER CURIAM.
In this case there must be a new trial. It is conceded that the testimony taken upon the trial on the part of the defendant is lost. This loss the defendant has supplied by affidavits setting forth his version of .the evidence given in his behalf. Opposing affidavits are submitted by the plaintiff, and upon the statements contained in such affidavits an issue of fact is raised, that should not be decided upon affidavits.
Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.