(dissenting): I dissent. The question whether the defendant had sufficiently explained the error of its bookkeeping department was submitted to the jury. Indeed, counsel agreed to submit the case without any summing up, solely on the charge of the court, to which no exception was taken. There appears, it is true, to have been a technical error committed in permitting a witness, on behalf of the defendant, to testify apparently to his conclusion that after looking at a certain book plaintiff had made no deposit in the bank on May seventh, and this he did, after saying that his “ recollection had been refreshed ” by looking at the book. But it is quite clear that while the question was loosely put and the answer apparently improper, the witness was manifestly testifying as to the significance of book-keeping entries — because he had already said that he had no personal knowledge of the transaction, and the next question, to which no objection was taken, was “ If any deposits were made, they would appear in that book in red *436ink? ” to which the witness answered “Yes.” My review of the testimony leads me to the conclusion that plaintiff failed to'make out her case by inability or unwillingness to sufficiently identify a deposit other than the one of May fifteenth, and by contradictory statements in that regard.
Under such circumstances, I think that the verdict of the jury was in accordance with the evidence and that the apparent error in the matter of testimony was negligible and did not affect the result. I think, therefore, that the judgment should be affirmed.
Judgment reversed, and. new trial ordered, with costs to appellant to abide event.