Opinion
October 27, 1955.
The Municipal Court of the City of New York, Borough of Manhattan, First District, Maurice Wahl, J., entered a judgment in favor of the plaintiff, and the defendants appealed. The Supreme Court, Appellate Term, First Department, held that admission in evidence of photostatic copy of contract without proof that original could not be produced and without showing that original had become illegible, constituted reversible error.
Judgment reversed, and complaint dismissed.
Lawrence J. Goldstein, New York City, for appellants.
Marcus Scherl, New York City, for respondent.
Before EDER, SCHREIBER and HECHT, Jr., JJ.
[1, 2] The admission in evidence of the photostatic copy of the contract in question without proof that the original could not be produced other than that it was "at the home office" in Chicago, or without a showing that the original had become illegible, constituted reversible error. This deficiency could undoubtedly be supplied at a new trial. However, in view of the notification by defendants to plaintiff in July 1953, of the change in defendants' status from a partnership to a corporation and the admitted receipt by plaintiff of such notice, a new trial is not warranted. Assuming that it was not a "formal notice" as plaintiff contends, it was nevertheless, such notice that in the exercise of ordinary care in everyday business practice and usage plaintiff was chargeable with knowledge of the change. The complaint should therefore have been dismissed.
Judgment reversed with $30 costs and complaint dismissed, with costs.
SCHREIBER and HECHT, JJ., concur.
EDER, J., concurs in result.