Brody v. Katz

In this case there must be a new trial. It is conceded that the testimony taken upon the trial on the part of the defendant is lost. This loss the defendant has supplied by affidavits setting forth his version of .the evidence given in his behalf. Opposing affidavits are submitted by the plaintiff, and upon the statements contained in such affidavits an issue of fact is raised, that should not be decided upon affidavits.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.