Berrian v. Sanford

Headnote

Eidenee—parol to show contents of uniting — Reference—receiving testimony subject to objection.

A witness testified to the existence of a memorandum. Held, that oral testimony was not admissible to show the contents of such memorandum.

The reservation by a referee of the question of admissibility of testimony objected to, and receiving the testimony is probably not error, but the referee ought, before closing the case, to make his ruling and advise the parties. The practice of reserving the question disapproved in Sharpe v. Freeman, 45 N. Y. 803 ; and condemned in Olussman v. Merkel, 3 Bosw. 403 .

Appeal from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by Charles E. Berrian against Josephine E. Sanford to recover the value of a horse which plaintiff claimed defendant had agreed to deliver to him.