On the trial the controversy between the parties to this action was reduced substantially to the question whether or not defendant was entitled to be credited with the amounts of
Defendant’s exceptions concerning the memoranda from wMch plaintiff read while testifying were confined to the referee’s refusal to direct the production of the memoranda for inspection by defendant’s counsel. The record, however, shows that the memoranda were produced and inspected by defendant’s counsel after the referee’s ruling was had, and that plaintiff was cross-examined respecting their contents. Under the circumstances, the error of the referee’s refusal, assuming it to have been such, was harmless, and the exceptions therefore afford no ground for reversal. Bank v. Dearborn, 20 N. Y. 244; Phillips v. Richardson, (Com. Pl. N. Y.) 12 N. Y. Supp. 282. Furthermore, the error was waived. Crosby v. Day, 81 N. Y. 242; Neil v. Thorn, 88 N. Y. 270, 277.
The judgment should be affirmed, with costs. All concur.