Geminder v. Zauderer

Appellate Division of the Supreme Court of New York

Geminder v. Zauderer

8 A.D.2d 703, 185 N.Y.S.2d 390, 1959 N.Y. App. Div. LEXIS 8648

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 12, 1959

StatusPublished

Cited by1 cases

This text of 8 A.D.2d 703 (Geminder v. Zauderer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Geminder v. Zauderer, 8 A.D.2d 703, 185 N.Y.S.2d 390, 1959 N.Y. App. Div. LEXIS 8648 (N.Y. Ct. App. 1959).

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Opinion

Judgment in this consolidated action unanimously reversed on the facts and on the law, and a new trial ordered as to all parties, with costs to abide the event. The action resulted from a three-car collision, and presented a close question of negligence or freedom therefrom as between Zauderer and Geminder. John Demos, a party to the action, and a witness, identified a photostatic copy of a report that he made to the Motor Vehicle Bureau concerning the accident. The report, excluded upon objection when it was offered, contained certain admissions by the witness, and a statement that in some material respects could be deemed inconsistent with Demos’ testimony. Under the circumstances, the exclusion of the statement was error. “ The proof need not be direct and positive contradiction; it is enough rhat the testimony and the statements are inconsistent and tend to prove differing facts." (Nappi v. Falcon Truck Renting Corp., 286 App. Div. 123, 126, affd. 1 N Y 2d 750; see, also, Reed v. McCord, 160 N. Y. 330, 341.) In an action where the issues were as sharply drawn as here, the exclusion of the statement may well have been prejudicial. Concur — Breitel, J. P., Rabin, M. M. Frank, Valente and Stevens, JJ.

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Judgment in this consolidated action unanimously reversed on the facts and on the law, and a new trial ordered as to all parties, with costs to abide the event. The action resulted from a three-car collision, and presented a close question of negligence or freedom therefrom as between Zauderer and Geminder. John Demos, a party to the action, and a witness, identified a photostatic copy of a report that he made to the Motor Vehicle Bureau concerning the accident. The report, excluded upon objection when it was offered, contained certain admissions by the witness, and a statement that in some material respects could be deemed inconsistent with Demos’ testimony. Under the circumstances, the exclusion of the statement was error. “ The proof need not be direct and positive contradiction; it is enough rhat the testimony and the statements are inconsistent and tend to prove differing facts." (Nappi v. Falcon Truck Renting Corp., 286 App. Div. 123, 126, affd. 1 N Y 2d 750; see, also, Reed v. McCord, 160 N. Y. 330, 341.) In an action where the issues were as sharply drawn as here, the exclusion of the statement may well have been prejudicial. Concur — Breitel, J. P., Rabin, M. M. Frank, Valente and Stevens, JJ.

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Bluebook (online)

8 A.D.2d 703, 185 N.Y.S.2d 390, 1959 N.Y. App. Div. LEXIS 8648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geminder-v-zauderer-nyappdiv-1959.

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