Max v. Brookhaven Development Corp.

262 A.D. 907, 28 N.Y.S.2d 845, 1941 N.Y. App. Div. LEXIS 6442

Opinion

Appeal by the defendant by permission of this court from an order of the Appellate Term, affirming a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, in favor of the plaintiffs in an action by the plaintiff-wife to recover damages for personal injuries and by her husband for loss of services. Order' of the Appellate Term reversed on the law and the facts, judgment of the Municipal Court vacated, and a new trial ordered, with costs in this court and in the Appellate Term to the appellant to abide the event. The negligence of the operator of the automobile is alleged to have been established by offering in evidence a certificate of conviction showing that on the day of the accident he had pleaded guilty to a charge of reckless driving. Assuming that this charge arose out of this accident, of which fact there is no proof, the admission of such certificate constituted error. (Roach v. Yonkers Railroad Co., 242 App. Div. 195.) While the admission was not objected to, where, as here, the recovery is based largely upon such incompetent evidence, a new trial will be ordered in the interests of justice. (Stoppick v. Goldstein, 174 App. Div. 306.) The record contains other errors concerning the admission of hearsay evidence, but as a new trial is to be had it is unnecessary to discuss them. Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ., concur.