Majority
p. 135(6 Misc. Rep. 535.) BIRNBAUM v. LORD et al. (City Court of New York, General Term. January 18, 1894.) Argued before NEWBURGER and MCCARTHY, JJ.
Headnote
W itness—Impeachment.Where witness testifies that plaintiff swore to certain facts on a former trial, the minutes of such former trial are admissible for the purpose of impeaching the witness.
Appeal from trial term.
Action by Joseph Birnbaum, an infant, by Marx Birnbaum, his guardian ad litem, against Samuel Lord and Edward P. Hatch. From a judgment in favor of plaintiff, defendants appeal Affirmed.
Henry Tompkins, for appellants.
Edward C. Stone, for respondent.
This is an appeal from a judgment entered upon the verdict of a jury awarding the plaintiff $250 damages for personal injuries caused by negligence, and from the order denying defendants’ motion for a new trial. This involves a question of fact, and, while the evidence is not very strong, yet it is sufficient to
p. 136
require the question of negligence to be submitted to the jury. There was sufficient evidence as to the ownership of the wagon and the agency of the driver to have forced defendants to contradict same. Seaman v. Koehler, 122 N. Y. 646 , 25 N. E. 353 . The evidence of Stone was admissible and relevant, as also the minutes of the former trial, which were offered for the purpose of impeaching the witness Tompkins, who had just sworn that on the last trial the boy Birnbaum had sworn to a certain state of facts. These minutes were in the possession and control of the witness Tompkins, and admitted to be correct. They were proper, then, to prove that the boy did not swear to the facts as testified to by Tompkins. The case was properly submitted to the jury, and we find no error. Judgment is therefore affirmed, with costs.
Cases cited
- Seaman v. Koehler 122 N. Y. 646 p. 136