It is evident that the answer of the plaintiff’s cashier to the 7th cross-interrogatory was at variance and in conflict with the testimony given both by Mason and this same witness upon his direct examination, and it was the only evidence in the case to establish or even suggest any new consideration paid by the bank. Without it there would be an absence of any testimony to justify the court in submitting to the jury the question of whether or not the plaintiff parted with anything on the credit of the note. It was, therefore, of vital importance, and unless competent should not have been admitted. From the answer itself it cannot be assumed, because the contrary is asserted by the witness, that he was speaking as of his personal knowledge; and if it was based upon correspondence with Mason, which was not produced, it was clearly hearsay. We think, therefore, that it was error to permit an answer based on hearsay to be read upon a question so vital in the case, relating, as it did, to the right of the plaintiff to recover of the defendant, assuming that the jury should conclude that the note was diverted; because it will be noticed that the case was submitted to the jury in such shape that they might have found for the plaintiff, notwithstanding the note was restricted and diverted, solely upon the ground that the plaintiff was a bona fide holder for value.' And, as said, the only evidence to support this latter position (that the plaintiff was a bona fide holder for value) was the answer, which was allowed to be read over the defendant’s objection and exception.
*33"We think that for this error the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Rumsey, Patterson and Ingraham, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.