Opinion
December 18, 1951.
Present — Peck, P.J., Glennon, Dore, Cohn and Van Voorhis, JJ.
The order appealed from should be affirmed, except that upon the original examination plaintiff was entitled to a categorical answer to the question addressed to defendant's witness Smith: "Was there any difference in composition or construction between the material which is referred to in Plaintiff's Exhibit 15a and the material which is referred to in Plaintiff's Exhibits 23a and 24a?" The answer given was "yes, minor differences." The characterization "minor" was a conclusion of the witness, which defendant was not entitled to have injected into the record unless it were willing to disclose the facts on which such a conclusion was based. Plaintiff should be allowed to inquire upon further examination concerning the facts constituting such differences, unless the conclusion that the differences were "minor" is expunged from the answer. Plaintiff was entitled to be apprised whether there were differences, and, if such differences existed, the degree and importance thereof were subjects for the trial. Order unanimously modified so as to permit an examination with respect to the facts constituting the differences and, as so modified, affirmed, with $20 costs and disbursements to the appellant, unless the defendant stipulates that the word "minor" be expunged from the answer, in which event the order is affirmed, without costs. Settle order on notice.