¶1Upon the facts found by the referee, the release executed by Reason would be ineffectual to impair the rights of the plaintiff, but the finding is unavailing to the respondent, as it is based on evidence which should have been excluded. He gave parol proof, on the hearing, of the agreement between the defendant and Reason, on which he relied to establish his right of action. It afterward appeared that the contract was reduced to writing; and the respondent neither produced it nor accounted for its non-production. The referee erred in denying the defendant’s motion to strike out the parol proof thus received, and in giving effect to secondary evidence of a promise, embodied in a written contract, the terms of which were unascertained. Dunn v. Hewitt, 2 Denio, 637; Rogers v. Van Hoesen, 12 Johns. 221; Jenner v. Joliffe, 6 Id. 9.
¶2The judgment should be reversed and a new trial ordered, with costs to abide the event of the action.
¶3A majority of the judges concurred.
¶4Judgment reversed and a, new trial ordered, with costs to abide the event.