Opinion
March 19, 1945.
Action to recover damages for personal injuries. Defendants appeal from a judgment entered on a jury's verdict in favor of the plaintiff. Judgment reversed on the law and a new trial granted, with costs to abide the event. Reversible error was committed by allowing, on rebuttal, evidence of conversations alleged to have been had by the plaintiff and the plaintiff's witness Kamin with defendants' witness Tifverman, which evidence impeached the direct testimony given by Tifverman. No foundation was laid for the reception of such testimony. Its reception was prejudicial and requires reversal and a new trial. ( Loughlin v. Brassil, 187 N.Y. 128; Hanlon v. Ehrich, 178 N.Y. 474; Richardson on Evidence [6th ed.], § 580.) The court has considered the questions of fact and has determined that it would not grant a new trial upon those questions were it not for the error alluded to. Close, P.J., Hagarty, Johnston, Lewis and Aldrich, JJ., concur.