(concurring.) The presiding justice suggests that there was no proof whatever that any affidavit made by Flack existed. If by this the presiding justice means there was no direct.proof ofFlack’s signature and oath, I agree. But there was abundant proof that Flack made himself responsible for the existence of this affidavit, and for the statements therein contained; for upon it he applied to the city court for certain relief, and he served what purported to be a copy of this affidavit upon his adversary with his notice of motion. I can conceive of no more conclusive evidence of the existence of this affidavit, as against Flack, than these facts. It either existed, as Flack thus deliberately asserted, or he and his attorney were guilty of a fraud upon the city court in pretending that it existed, which we should not assume. But, whether this affidavit was actually verified or not, it was clearly admissible as a *758statement made and put forward by Flack, and used by him upon the application which he made to the city court thereon, in his own interest and for his own benefit. There was also abundant proof that the paper admitted in evidence was a copy of this affidavit, and that the original could not be found. The learned counsel for the appellant, in criticising the ruling of the circuit court, quotes but a small part of the testimony upon the latter head. The witness, Duffy, in fact, testified that he had searched in the clerk’s office of the city court for two days, “all over the books and papers of the date upon which the affidavit was recorded as having been filed,” and could not find it. As to the point that the evidence was insufficient to show that the paper so admitted at circuit was a copy of the affidavit, the testimony of Mr. Daniels is controlling. This gentleman was the attorney for the plaintiff in the city court suit, and he distinctly testified that the paper which he produced was the identical copy of the affidavit which was served upon him by Flack’s attorney. This copy so served was clearly admissible as an independent assertion by Flack of the statements therein contained , upon which statement he asked for relief. I therefore concur with Mr. Justice O’BRIEN that the paper in question was properly admitted. I also agree with him as to the other questions discussed, and I think the judgment should be affirmed, with costs.