(dissenting.) The only question worthy of deliberation is that raised by the exception of the defendant’s counsel, found at folio 98 of the- case. The action was brought to recover the proceeds of a draft made by John C. Miller on the plaintiffs, to- the order of the defendant, accepted by them, and indorsed by the defendant. The complaint alleges that the draft was discounted for the plaintiffs by a bank in Rochester, and that the proceeds ($3000)- were wrongfully appropriated, and converted to his own use, by the defendant. The defendant admits the making and acceptance, indorsement and discounting of the draft; but denies the appropriation of the proceeds, by him, and alleges that the same were appropriated by John G. Miller, for whose accommodation, as well' as for that of the plaintiffs, the draft was indorsed by him.
The defendant’s counsel endeavored to- prove, at the trial, that the plaintiffs had in fact received the proceeds of the draft in question, $2952.29, (the proceeds after deducting discount,) by two drafts drawn by the cashier of the Rochester Bank on the Metropolitan Bank of Eew York, and indorsed by John C. Miller; one for $1000, the other for $1952.49. The plaintiffs’ counsel, for the *152purpose of disputing the allegation that these drafts were received by them as the proceeds of the $3000 draft, offered a letter written by John 0. Miller, from which it appeared that the draft for $1952.49 consisted of the proceeds of a draft for $2000, made on a different occasion.
[New York General Term, June 7, 1869.The plaintiffs had a right, of course, to disprove the allegation that the draft for $1952.49 was a part of the proceeds of the $3000, by showing that it consisted of the proceeds of a totally different draft. But could he show this by the unsworn oral declaration of John O. Miller ? Certainly not. Does the unsworn written declaration to the same effect make the evidence any better? It was not shown that the defendant authorized John C. Miller to make the declaration, or that he afterwards admitted it to be true.
It could not be pretended that this hearsay evidence was a part of the res gestee. It was not a part of the transaction which was the subject of inquiry. It did not characterize a particular act, or the intention of the person who did the act; but the letter was produced for the purpose of showing that after the alleged appropriation of the proceeds of the $3000 draft, by the defendant, the plaintiff had received no portion of it. This could not be done by the unsworn declaration of John O. Miller, oral or written. The best and only way in which that, could be done was by producing and swearing John C. Miller as a witness.
The introduction of this illegal evidence was calculated to influence the jury adversely against the defendant, and, .consequently, affected his substantial rights. ..
For this reason the judgment should be reversed, and a new trial ordered; costs to abide the event.
Judgment affirmed.
Clerke, Cardozo and Geo. G. Barnard, Justices.]