dissent">Kellogg, J.

(dissenting):

The testimony of the bankrupt given upon the trial fixes his assets on the 17th of April, 1907, at $145,000 and his liabilities at $147,000, and shows that upon the twenty-sixth day of January when the defendant withdrew the money the assets and liabilities were each about $60,000 more. The introduction of his schedules in bankruptcy showing these same facts was entirely immaterial and not prejudicial to the defendant. The appraisers in bankruptcy as witnesses swore that a fair appraisal of all the bankrupt’s assets was $49,655.99, which includes $6,000 as the total value of his real estate.

The deposition of the bankrupt contained no statement prejudicial to the defendant which was not found in the evidence of the bankrupt or of the defendant upon the trial. The schedules as evidence were, therefore, harmless.

The testimony of the bankrupt shows that his bank held his notes for $53,339.69, and that he owned no property outside of the bank except his real estate and the stock of goods in the store. The real estate was sold at public auction, after due notice, for $5,865; the stock of goods sold for $1,000. Therefore, the total assets of the bankrupt, outside of the bank itself, was $6,865, in addition to which the bankrupt says that he had an equitable interest of about $12,000 or $13,000 with his brokers in New York, and the defendant understood that his father had $12,000 paper profit with his New York broker. Besides the notes of the bankrupt in the bank he had an overdraft of $2,771.36 before the defendant, as cashier, at his direction canceled the notes of his sister, his brother and his brother-in-law, aggregating $7,381, and charged the same to the bankrupt, making his overdraft $10,152.36, so that upon the day in ' question the bankrupt carried upon the bank books as assets his obligations of $63,492.05, and his total property as we have seen was of the value of $6,865, besides some apparent paper profits with a speculative broker’s office in New York. If he had ordinary intelligence he must have known of his insolvency.

The defendant, his son, .thirty-four years of age, had always worked for his father, lived in the same village, and for the last thirteen years had been cashier of his bank and knew generally the value of property. _ He drew the $500 in question from the bank *790upon the same day that he, as cashier, extinguished the liabilities of the other members of the family to the bank. He says he received his money perhaps an hour before he canceled their notes. It was practically one transaction. On the twenty-first day of March he withdrew from the bank about $1,500 which stood to his credit as treasurer of the village of Hancock, and thereafter kept the money in his pocket, and he says : “ I don’t think that this transaction of the 26th day of January had anything to do with my making np my mind that I wanted to withdraw those funds. There had been no practical change in my father’s condition down to the 31st of March.” If he had ordinary intelligence he must have known that his father was insolvent. It is incredible that either the bankrupt or the defendant was ignorant of the financial situation of the father, and the defendant must have realized that the withdrawal of these moneys gave him a preference over other creditors.

The judgment is clearly right. If the schedules in bankruptcy, the deposition of the bankrupt in the bankruptcy proceedings and the appraisal in bankruptcy were stricken from the record, the remaining evidence does not leave the liability of the defendant in doubt. It would be a miscarriage of justice to reverse this judgment for technical errors in the receipt of evidence when the facts shown by such evidence have been fully proven by witnesses in court and are substantially uncontradicted. I favor an affirmance of the judgment.

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

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