Opinion
May, 1933.
Judgment affirmed, with costs. Rhodes, Crapser and Bliss. JJ., concur; Hill, P.J., and Heffernan, J., dissent and vote to reverse and for a new trial on the following grounds: Prejudicial errors in receiving hearsay evidence of plaintiff's intoxication. Witness Barber denied, on defendants' cross-examination that he had said plaintiff was intoxicated. This subject was not touched on Barber's examination in chief. Four of defendants' witnesses said that Barber had made such statements. This was offered and received as bearing upon Barber's credibility. Credibility of a witness is a collateral issue, and defendants were bound by the answers ( People ex rel. Phelps v. Oyer Term. of Co. of N Y, 83 N.Y. 436; Smith v. Lehigh Valley R.R. Co., 177 id. 379; Potter v. Browne, 197 id. 288); and counsel improperly asked as to the arrest for intoxication of plaintiff's companion who was neither party nor witness. ( Cosselmon v. Dunfee, 172 N.Y. 507.)