Opinion
December 4, 1961
In a negligence action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County, entered October 5, 1960, on a jury verdict after trial, in favor of plaintiff. Judgment reversed, without costs, and a new trial ordered. Defendant rested on plaintiff's case. The only proof as to the cause of the accident was: (a) plaintiff's testimony that, a few days after the accident, defendant made an incriminatory statement to him; (b) a hospital record containing a statement by plaintiff exculpating defendant; and (c) testimony and a memorandum by a police officer concerning a similar exculpatory statement made to him by defendant soon after the accident. During summation by defendant's counsel, the trial court unexpectedly interrupted him, reversed its previous ruling admitting in evidence the police officer's testimony and written memorandum concerning the statement made to him by the defendant as to how the accident happened, and then expunged that testimony and exhibit from the record. Defendant's counsel excepted to this ruling and then completed his summation. Before the court's charge, defendant's counsel moved for a mistrial because of the expunction of such proof during his summation, pointing out that the proof was a basis for his decision to rest on the plaintiff's case without calling the defendant as a witness. The motion for a mistrial was denied. On appeal, defendant's counsel argues that he rested without calling defendant as a witness because defendant's version of the accident was already in evidence by way of the officer's testimony and memorandum containing defendant's statement to him; that he had planned his summation on the assumption that such statement was in evidence; that the unexpected expunction of such proof, in the middle of his summation, deprived him of a chance to put defendant on the stand and give his version of the accident to the jury; and that the timing and manner of the expunction disrupted his summation and destroyed its coherence and logic. Without reaching the question whether the expunged testimony and memorandum were or were not admissible in evidence, it is our opinion that the unusual circumstances of this case require a new trial in the interests of justice. Nolan, P.J., Ughetta, Kleinfeld and Brennan, JJ., concur; Beldock, J., not voting.