Wilkes v. Gallagher

51 Misc. 654, 99 N.Y.S. 866

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 1, 1906
• Status: Published

Opinion

McCall, J.

The admission of evidence as to repairs made after the accident was error. Emphasized, as it was, by the charge of the learned trial justice that such evidence established a fact to be considered by the jury, it calls for the reversal of the judgment. It is true that the answer denies the existence of the hole as set out in the complaint and that some proof was offered by the defendant to negative the claim of the plaintiff as to the condition of the hole she asserted existed at the time of the accident; but the defendant did not deny, neither did he attempt to disprove, that a hole or depression was there. The admission of such proof as we now predicate our reversal upon, no matter what the attempt at limitation in effect may be, is to be discountenanced .for fear of the prejudice it is likely to create on the question of prior negligence. We are not concluding, however, that conditions could not exist which would warrant the introduction of and make admissible such proof for specific purpose; but this record reveals no such condition and the evidence necessarily affected the question of defendant’s prior negligence for which purpose it is never admissible.

Concluding, therefore, that a reversal must follow for the reason stated, it renders unnecessary any discussion of the other questions arising.

GilDersleeve and Leventritt, JJ., concur in result.

Judgment and order reversed and new' trial ordered, with costs to appellant to abide event.