Opinion
June 2, 1975
In a negligence action to recover damages for personal injuries, defendant appeals from a judgment of the Supreme Court, Westchester County, entered October 15, 1974, in favor of plaintiff, upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The appeal presented no questions of fact. The trial court committed error in refusing to allow a defense witness to testify to an alleged declaration by plaintiff which was entirely inconsistent with his position at trial (see Richardson, Evidence [Prince, 10th ed], ch X, Admissions). There was no bar to the admission on any ground; the fact that the witness is a medical doctor is irrelevant. Whether his testimony was incredible was an issue for the jury. Martuscello, Acting P.J., Christ and Munder, JJ., concur; Latham and Cohalan, JJ., dissent and vote to affirm the judgment.