Opinion
October 24, 1955.
Present — Nolan, P.J., Wenzel, Schmidt, Beldock and Murphy, JJ. [See post, p. 1105.]
In an action to recover damages for personal injuries alleged to have been caused by negligent operation of a bus owned by respondent City of New York, and operated by respondent Harris, the appeal is from a judgment in favor of respondents entered on the verdict of a jury. Judgment unanimously affirmed, with costs. No claim of privilege having been presented, it was proper to receive in evidence the records of the Kings County Hospital relating to the treatment of appellant for chronic alcoholism, and to cross-examine him regarding such treatment, in view of his testimony concerning headaches subsequent to the accident, and that prior thereto he had been in very good health. In view of this testimony, inquiry as to appellant's state of health prior to the accident did not concern a collateral issue. No error was committed by the admission of certain portions of the Cumberland Street Hospital record. The entire record, excluding only hearsay statements, was admitted and marked in evidence on appellant's offer, and he may not complain that portions thereof, which are not records of hearsay statements, were not excluded. In any event, the portions of the record now complained of were, in our opinion, admissible. ( People v. Kohlmeyer, 284 N.Y. 366.) Although evidence of previous intoxication was not competent proof of intoxication at the time of the accident, the evidence, having been properly admitted for another purpose, was before the jury, and appellant's remedy to prevent consideration thereof by the jury for an improper purpose was to ask for an instruction by the court as to the purpose for which it might be considered. (Cf. Pontius v. People, 82 N.Y. 339, 347, and Platner v. Platner, 78 N.Y. 90, 101.) No such request was made.