Opinion
January 26, 1945.
Appeal from Supreme Court, New York County.
We think the court should have granted the plaintiff's request to charge that the inconsistent written statement of the witness Ausserer might, under section 343-a of the Civil Practice Act, be considered only on the question of his credibility and was not affirmative proof of the facts therein contained. ( Matter of Roge v. Valentine, 280 N.Y. 268.) The Trial Judge likewise erred in prohibiting the interrogation of the defendant's witness Malcke concerning an inconsistent statement claimed to have been made by him after the alleged accident in order thereafter to impeach his credibility by the testimony of persons to whom the statement was made. ( Larkin v. Nassau Electric R.R. Co., 205 N.Y. 267.)
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Townley, Glennon, Untermyer and Dore, JJ., concur; Martin, P.J., concurs in result.
Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.