The following excerpt is from O'BRIEN v. Thall, 283 F.2d 741 (2nd Cir. 1960):
The lack of evidence upon which the directed verdict was based could not possibly be attributed to evidence which allegedly had been erroneously received. And the evidence which appellant vaguely refers to as having been erroneously excluded appears to have been inadmissible as hearsay or opinion evidence. In any aspect such evidence was irrelevant on the issue of wrongful appropriation as defined in Arnstein v. Porter, supra. Such evidence, even had it been received, would not have supplied the lack of evidence of copying or wrongful appropriation which was apparent on the face of the musical scores in evidence.
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