I" concur in the opinion of Hr. Justice Hooker. ' It is quite plain that the case turned on the question whether or not the plaintiff held the papers with the defendant’s permission. On that disputed fact it is elementary law that the defendant was entitled to prove that it was his duty to keep possession of the papers and that he was actually required to swear that they were never out of his possession. Such evidence is that of. a substantive fact which tends to some extent to support the defendant’s contention that he did not voluntarily part with the possession, and is in principle of the same character as the rejected evidence which caused the reversal of the conviction in Stokes v. People (53 N. Y. 164, 174).