Bistritz v. Star Fire Insurance — 105 N.Y.S. 116

Majority

p. 116

(55 Misc. Rep. 230)

BISTRITZ v. STAR FIRE INS. CO. OF LOUISVILLE, KY.

(Supreme Court, Appellate Term.

June 27, 1907.)

Headnote

Witnesses—Cboss-Examinat],on—Memobandum to Refbesh Recollection.

Where, on the trial of an action on a fire policy, insured refreshed his recollection as to the goods destroyed by reference to two pages of a memorandum book, which pages were in his handwriting, cross-examinátion as to whether the entire book was in his handwriting was erroneously excluded.

[Ed. Note.—For eases in point, see Cent. Dig. voi. 50, Witnesses, § 958.]

Appeal from Municipal Court, Borough of Manhattan, Second District.

. Action by Baruch Bistritz against the Star Fire Insurance Company of Louisville, Ky., oq a fire policy. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and SEABURY and PLATZEK, JJ.

S. J. Rosenblum, for' appellant.

Feltenstein & Rosenstein, for respondent.

This is an appeal from a judgment in favor of the plaintiff for $519.41. The .action was brought to recover upon the usual standard form of policy of fire insurance. As the judgment appealed from must be reversed, because of an erroneous ruling upon an important question of evidence that was involved, and the action must be retried, we do not think it necessary to review all the questions presented by this appeal.

p. 117

The appellant was not allowed sufficient scope in cross-examination. The plaintiff refreshed his recollection, as to the goods that were destroyed by fire, by reference to two pages of a memorandum book, which pages were in his handwriting. On cross-examination he was asked whether the entire book was in his handwriting, and objection to this question was sustained, over the exception of the defendant. . We think that the defendant clearly had the right to have the witness answer this question. If the witness answered that the book was not in his handwriting, it could not have been offered in evidence; but if he answered that it was in his handwriting, and it contained matter, relevant to the issue, it certainly would have been competent evidence against him. It is impossible for us to say that the defendant was not prejudiced by the ruling that was made, and the judgment should be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.