Opinion
February 16, 1967
Appeal from the Erie Trial Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Judgment unanimously reversed on the law and facts and a new trial granted, with costs to appellant to abide the event. Memorandum: The verdict was against the weight of the evidence. Furthermore, defendant driver's testimony was such as to leave the inference that no summons for a traffic violation had been issued to him as a result of the operation of his motor vehicle at the time of the accident. In fact, plaintiff's counsel had present in the courtroom certificates of conviction entered on pleas of guilty which, if before the jury, would have rebutted the inference and would have constituted an admission that he did not turn the corner with extreme caution. After a conference in chambers counsel withdrew his offer of the certificates; however, upon a proper foundation this proof should be before a jury which is passing upon the driver's conduct at the time of the accident (see Ando v. Woodberry, 8 N.Y.2d 165). Finally, if plaintiff does not avail himself of the procedure which will make it mandatory for the trial court to take judicial notice of subdivision 3 of section 11 of the Buffalo Ordinance, it would appear that, in the exercise of discretion, the court should take judicial notice of and charge this provision (CPR 4511, subd. [b]). The ordinance subdivision is essentially identical to former subdivision 10 of section 81 Veh. Traf. of the Vehicle and Traffic Law which this court held should have been charged in a case very similar to the present one ( Leonard v. Beach Lbr. Co., 283 App. Div. 848).