In an action for commissions on the sale of defendant’s goods, plaintiff testified to the amounts of sales and the names of customers upon whose orders he claimed commission. On cross-examination it appeared that he kept no books or other contemporaneous records of sales made on defendant’s behalf, but that he had a list of his customers. When difficulties arose between his employer and himself he went to the various customers and asked for the amount of goods bought and paid for. The figures thus obtained were the ones given in plaintiff’s direct examination as of his own knowledge. No objection was made to his use of the paper from which he read, but a motion was made to strike out all this testimony on the ground that it was hearsay. Plaintiff had no independent recollection of the facts, the paper was not used to refresh his recollection, nor was it a contemporaneous record kept by him. The motion should have been granted.
The judgment is reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, Bijur, Wagner and Levy, JJ.