Joseph v. Griesman Trucking Co.

265 A.D. 590, 40 N.Y.S.2d 200, 1943 N.Y. App. Div. LEXIS 6363

Opinion

Per Curiam.

The trial court committed prejudicial error (1)-in excluding proof of prior statements by defendant’s chief witness relating to the subject-matter of the action and inconsistent with his testimony at the trial, and (2) in preventing plaintiff’s counsel from laying the foundation to prove such claimed contradictions. Plaintiff’s counsel repeatedly stated that he was offering the proof solely on the issue of the witness ’ credibility and not as binding on the defendant. Any such statement made orally or in writing, if contradictory of a material part of the witness ’ testimony, may, if properly proved, be introduced in evidence, not as substantive proof of the truth of such statement, but as tending to discredit the witness; and a foundation must be laid for the introduction of such testimony. (Larkin v. Nassau Electric R. R. Co., 205 N. Y. 267; Hanlon v. Ehrich, 178 N. Y. 474, 479, 480; Lederer v. Lederer, 108 App. Div. 228, 232 [First Dept.]; Shoupe v. 2525 Amsterdam Avenue Corp., 261 App. Div. 393 [First Dept.].) The exclusion was error.

Plaintiff’s claim was not inherently improbable in view of all the surrounding facts and circumstances, and the errors noted require a reversal of the judgment in defendant’s favor.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Martin, P. J., Untebmyeb, Dobe, Cohn and Callahan, JJ., concur.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.