Opinion
February 7, 1966
In an action to recover money loaned, defendant, by permission of the Appellate Term of the Supreme Court, appeals from an order of that court, made September 17, 1965, which affirmed (1) a judgment of the Civil Court of the City of New York, Kings County, entered December 4, 1964 upon a jury's verdict, and (2) an order of said Civil Court, entered December 14, 1964, which granted defendant's motion to retax costs. Order of the Appellate Term and judgment and order of the Civil Court reversed on the law and a new trial granted, with costs to abide the event. In our opinion it was error to refuse to admit into evidence the contract for the sale of the oil burner. The contract shows that plaintiff's brother and not the defendant was the contracting party. This document signed by the witness, Arcaro, was inconsistent with Arcaro's testimony on who was the contracting party. It was admissible to impeach him. We are of the further opinion that the contract in question is also admissible as evidence in chief of the facts contained therein. The claim of a loan to the defendant is bottomed on plaintiff's claim that the defendant bought the oil burner and needed a loan to meet the purchase price. Evidence that the purchaser was someone other than the defendant is relevant and material to the issue of the loan. If the defendant was not the purchaser, no loan was made to her for that purpose. The contract in question appears to be a document kept in the regular course of business by the oil burner company. If such, it is admissible as proof of the truth of the facts contained therein. Brennan, Acting P.J., Hill, Hopkins and Benjamin, JJ., concur; Rabin, J., dissents and votes to affirm the order of the Appellate Term.