¶1I am unable to concur in the view that the ruling discussed in the opinion of Mr. Justice Hooker was erroneous. If the defendant had accounted for his use of the certified cheek instead of money by a statement that the police department, in fact, required certified checks instead of cash to be paid for concert licenses, the evidence as to the custom in the police department which was excluded would have been relevant, and its exclusion would have been error. The testimony of the defendant on this subject, however, was, in effect, merely a declaration that he had been told by an inspector of police that a certified check would be required. In other words, he sought to account for his action by the explanation that he had relied upon information obtained from some one who was in a position to know *12what actually were the requirements of the department. Indeed, he testifies that the inspector telephoned to New York “to the people of the Police Department,” and then told the witness “ that they had told him to bring a certified check for the concert license.” I am unable to see how proof of what was the actual custom of the police department in respect to the receipt of certified checks or cash for such licenses would in any wise affect the truthfulness of this testimony or the validity of the excuse or explanation offered by the defendant. The question was what motive actuated him in procuring a certified check instead of using money, and it is plain that he might have been influenced by an apparently credible statement as to the requirements of the police department on that subject from one who was in a position to know, irrespective of its actual truth or falsity. It would have been proper, of course, for the plaintiff to show, if he could, that the defendant knew the custom to be different, or that the inspector had not made the statement to which the witness testified, but I can perceive no ground on which proof of the actual custom of the department could be relevant, unless it appeared that such custom was known to the defendant.
¶2Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.