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Stasio v. Janssen Dairy Corp.

279 N.Y. 501 Court N.Y. Decision date 1939-01-11 English

Contents

Majority

p. 501
Louis De Stasio, Appellant, v. Janssen Dairy Corporation, Respondent.
Argued December 6, 1938;
decided January 11, 1939.
p. 502
Robert R. Bauman and Arthur L. Obre for appellant.
The trial court committed reversible error by permitting an inquiry as to previous convictions of plaintiff for traffic infractions as allegedly affecting the plaintiff’s credibility. (Civ. Prac. Act, § 355; See v. Wormser, 129 App. Div. 596 .) The trial court permitted violations of the well-known rule that the character of a party in a civil cause of action cannot be looked to as evidence that he did, or did not, act carefully as of the time in issue. (Zucker v. Whitridge, 205 N. Y. 50 ; Noonan v. Luther, 206 N. Y. 105 ; Morningstar v. Lafayette Hotel Co., 211 N. Y. 465 ; Taylor v. Heft, 150 App. Div. 509 ; Eppendorf v. Brooklyn City & Newton R. R. Co., 69 N. Y. 195 ; Wooster v. Broadway & 7th Ave. R. R. Co., 72 Hun, 197 ; Hovell v. The Evergreens, 242 N. Y. 216 .) Where issues are sharply litigated, errors in the admission of incompetent evidence may not be disregarded as harmless. (Hanrahan v. N. Y. Edison Co., 238 N. Y. 194 ; Moore v. Rosenmond, 238 N. Y. 356 ; Wurtzman v. Kalinowski, 233 App. Div. 187 ; Trombly v. Deso, 235 App. Div. 15 ; Creasy v. Eastern Greyhound Lines, Inc., 249 App. Div. 59 .)
p. 503
B. G. Barton for respondent.
The trial court’s ruling, even if error, was harmless. (Jacobs v. Jacobs, 252 App. Div. 794 ; Gotham Const. Corp. v. City of New York, 233 App. Div. 699 ; Von Au v. Magenheimer, 126 App. Div. 257 ; 196 N. Y. 510 .)

Evidence that a plaintiff, in an action for negligence growing out of the operation of an automobile, has been previously convicted for a traffic infraction as defined by the Vehicle and Traffic Law (Cons. Laws, ch. 71), shall not be received to affect his credibility when a witness in an action or proceeding, and he may not be required to disclose a conviction therefor (Civ. Prac. Act, § 355).

Plaintiff was repeatedly required to disclose such previous convictions. In a case as close as this such error cannot be disregarded.

The judgments should be reversed and a new trial granted, with costs to the appellant to abide the event.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Bippey, JJ., concur.

Judgments reversed, etc.

Cases cited