This action is apparently brought under section 60 of the Bankruptcy Act (30 U. S. Stat. at Large, 862, as amd. by 32 id. 799,800, § 13) to recover from the defendant the sum of $500, as having been paid to him by one William H. Nichols, an insolvent, within four months before the filing of his petition in bankruptcy, and as having been' received by the said defendant with knowledge of the fact that it was intended to give to him a preference as a creditor. Two facts were required to be proven in order to justify the judgment rendered ; First, that at the time of the transfer W illiam H. Nich*788ois was insolvent; and, second, that this defendant had reasonable ground to believe that the transfer was made with intent to give him a preference. Both facts have been found by the learned trial judge, and upon them he has directed the judgment against the defendant from which this appeal has been taken.
The judgment is challenged by the defendant for various reasons. Among others, it is'claimed that illegal evidence was received over his objection to establish the insolvency of William H. Nichols at the time of the transfer. With the petition filed by the said Nichols to obtain his discharge from bankruptcy, he filed certain schedules of his assets and liabilities, and in the proceedings which resulted in his discharge he gave certain evidence as to his condition upon January twenty-sixth, when it is claimed the fraudulent preference was given. These schedules and part of the evidence so given by him in the bankruptcy proceeding were offered in evidence by the plaintiff upon this trial for the purpose of establishing the insolvency of the said Nichols at that time. To this offer the defendant objected, that as to him they were hearsay and that he was not bound by these declarations. The objections were overruled, the evidence was admitted, and the defendant excepted to the ruling.
We are unable to see upon what ground this evidence was competent. It was the declaration of a bankrupt in a proceeding in which it does not appear that this defendant was a party. As to this defendant the evidence would seem clearly to be hearsay and inadmissible. (Burnham, v. Brennan, 74 N. Y. 597; Schreyer v. Citizens' National Bank, 74 App. Div. 478; Kain v. Larkin, 131 N. Y. 300; Lent v. Shear, 160 id. 462.) Upon the record it appears that the plaintiff’s counsel contended that this was proper evidence in contradiction of the witness William H. Nichols, who had been upon the stand. This witness had been called by the plaintiff and testified in behalf of the plaintiff. It is elementary that you cannot impeach your own witness or prove contradictory statements as to matters upon which yon have examined him. It follows that the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.
All concurred, except Kellogg, J., dissenting in opinion, and Sewell, J., not voting.