Hyperlawhypertext legal database Cellamare v. Third Avenue Transit Corp. 273 A.D. 260

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Cellamare v. Third Avenue Transit Corp.

273 A.D. 260 Court First Department, Decision date 1948-03-01 English

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p. 260
Donato Cellamare, Respondent, v. Third Avenue Transit Corporation, Appellant.
First Department,
March 1, 1948.
Addison B. Scoville of counsel (James M. O’Neill with him on the brief; Stuart Reidel, attorney), for appellant.
Isidor Neuwirth of counsel (Emil K at sica, attorney), for respondent.

It was prejudicial error to permit plaintiff’s expert medical witness, who took X-ray pictures of the plaintiff, to testify, over defendant’s objection and exception, to matters shown on the X rays and to findings based thereon, without producing the X-ray pictures and introducing them in evidence (3 Wigmore on Evidence, § 795; Gursslin v. Helenboldt, 259 App. Div. 1064 ; Marion v. Coon Construction Co., 216 N. Y. 178 ; O’Mara v. Curtin, 268 App. Div. 888 ). The judgment, should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Peck, P. J., Cohn, Callahan, Van Voorhis and Shientag, JJ., concur.

Judgment unanimously reversed and a new trial ordered with costs to the appellant to abide the event. Settle order on notice.

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