Q. I show you this slip of paper, and ask you if that is your signature? A. Yes, sir.

Paper referred to offered and received in evidence, and marked Exhibit B.

The numbers 3/8/06 on this paper means the third month, eighth day, year 1906; presumably the pay roll day, I signed a similar paper for my wages for each week during the time that I got forty dollars.

Q. I show you this slip of paper, and ask you if you can tell me what that is? A. A pay roll receipt.

Q. Do you know the man that signed it? A. I can read the name. I do not recollect the man.

Q. Do you know what kind of work he did there on that job, can you tell? A. I judge by the rate, I should say it was laboring work of some character; not a mechanic.

Q. Aren't you positive that is a receipt signed by a laborer that worked on the job? A. The rate does not conform to the rates of any of the several stated classes of labor. It is an odd rate, and I cannot place just who the man was.

Q. What was the laborer's rate, the wages on the job?

Objected to as immaterial.

Objection sustained. Defendant excepts.

I had lived at 507 Quincy Street, Brooklyn, something over a year, I think, prior to the time of my discharge by Butler Brothers.

Q. Didn't you give Butler Brothers that address, that same address, before this time? A. I moved after-when I was first employed by them at Yonkers I lived in one place, but while I was at Yonkers we moved in the same neighborhood. If they had my new address, I did not know it I did not know as they had my old address.

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RE-DIRECT EXAMINATION by Mr. Campbell:

Q. Counsel for the defendant brought out the fact that you returned this insurance money $36.75, was it? A. I think it was.

I returned that money to Butler Brothers after these criminal proceedings were entirely ended.

The Court: That is, after the discharge?

'The Witness: Yes, sir.

Q. A considerable number of questions addressed to you were on the subject of this drawing salary of $40 a week, you received that before your discharge in an envelope, you say? A. Yes, sir.

Q. And did not put it on your weekly account? A. No, sir.

For the week that I collected my salary by means of charging it on this statement, I did not receive my salary from any other source in Butler Brothers; I did not get my salary twice for that week.

Q. And was there any exception taken, or anything said to you by Mr. Robertson to the effect that he objected to your collecting your salary in that way? A. Not as to the form. The objection was whether the amount would be allowed; that was the only objection that he made.

Q. When had you first filed your claim to this $36.75 insurance with Butler Brothers? A. I complied with the requirements of that note on a yellow slip of paper.

Q. Do you remember when this note was sent in, or when you received this? A. Some days after the fire; possibly within a week or within a few days I should say after the fire.

In response to this I included my own personal loss of $36.75 with the other items. That remained in an unsettled state up to the time of my final accounting.

RE-CROSS EXAMINATION by Mr. Freedman: 127

Q. I understand you that even after the Magistrate had said that you had not stolen this $38 you voluntarily paid it back to Butler Brothers? A. $36.75.

Q. I beg your pardon. I misstated the amount? A. I returned it voluntarily to Butler Brothers.

Q. Even though the Magistrate had discharged you upon a charge of stealing that money? A. I returned it to Butler Brothers after being discharged by the Magistrate.

Q. And the charge having been that you had stolen that money?

The Court: That is all he can say.

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LEON H. BOYD, sworn as a witness in behalf of the plaintiff, testified as follows:

By Mr. Campbell:

I am Leon Higginson Boyd, I am the same person who signed the complaint against Mr. Ogden, in which he was charged with the larceny of $63.41.

Q. I want to ask you one question. Please tell us how you arrived at the amount of $63.41 as being the amount stolen by Mr. Ogden? A. I looked over the books with Mr. Robertson, our bookkeeper and cashier.

Q. I will show you this, if you want to refresh your recollection? A. And according to the statement that Mr. Robertson made up it showed that Mr. Ogden had made a statement which included four days more time than the statement which Mr. Robertson made up. In other words, it included days of the week which he did not work, that is, taking up the full week. He also included a statement of losses incurred at a fire, personal losses. That was not included on Mr. Rob

ertson's statement. sheet.

These amounts are stated on this

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Q. So that the amount of the alleged larceny was the $36.75 fire loss? A. Yes, sir.

Q. And the difference between a full week at forty dollars and the actual number of days that Mr. Ogden worked up to the time he was discharged? A. Yes, sir. That was these two days he worked out of the six.

By the Court:

Q. Who directed you to make that complaint? A. Why, Mr. William Butler was secretary of the corporation, and he says, "I want you to look over the account of Ogden."

Mr. Campbell: I object to what he said to you.

The Court: That is all I asked, who it was. That will do.

By Mr. Campbell:

William Butler was secretary of the company, 1 think, at that time.

PLAINTIFF RESTS.

Mr. Freedman: I move to dismiss the complaint upon the ground, first, that the plaintiff has failed to prove any cause of action; secondly, that he has failed to prove want of reasonable or probable cause; third, that he has failed to prove malice, express or implied; fourth, that on the undisputed testimony and under the charges the crime of larceny was made out or has been made out on the plaintiff's own story.

The Court: I will deny the motion.
Exception.

HUGH S. ROBERTSON, sworn as a witness in behalf of the defendant, testified as follows:

By Mr. Freedman:

My position with Butler Brothers is bookkeeper. I know the plaintiff, I am the Mr. Robertson as to whom he has testified about settling and adjusting his account with the firm.

Q. Will you please tell us what you said to him when he submitted this account, Plaintiff's Exhibit 2? A. I said that I could not settle on this basis, that Mr. Butler had instructed me to settle up to Saturday night in regard to the wages, and my best recollection I took exception to the item of fire loss as that had not been collected by the company, and consequently should not have been paid to Mr. Ogden.

Q. About how long prior to this adjustment with Ogden had the insurance companies refused to allow in the claim of Butler Brothers the claim for loss of clothing and personal effects of workmen? A. I settled that claim with the insurance companies about the middle of March.

Q. What statement, if any, did you make relative to your power or authority to settle on the lines indicated in that receipt? A. I had no authority to accept this settlement for wages because I had special directions

Q. What statement, if any, did you make to Ogden as to that? A. I told him I had no authority to settle on this basis.

CROSS-EXAMINATION by Mr. Campbell:

I did settle on that basis conditionally, and told him I would take the money and give him a receipt subject to Mr. Butler's approval of that settlement.

Q. And you never thereafter notified him, did you, that Mr. Butler did not approve the settlement? A. No, sir.

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