Hyperlawhypertext legal database Garber v. New York City Railway Co. 92 N.Y.S. 722

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Garber v. New York City Railway Co.

92 N.Y.S. 722 Court N.Y. App. Term Decision date 1905-03-21 English

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p. 722
GARBER v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate. Term.
March 21, 1905.)

Headnote

Evidence—Memorandum—Independent Evidence.
It was error for the court to read as original evidence a memorandum made by a witness which was available only to refresh the witness’ memory, if necessary.
[Edi Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, § 892.]
Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by Samuel Garber against the New York City Railway Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Reversed.
Argued before SCOTT, O’GORMAN, and BLANCHARD, JJ.
Rosario Maggio, for appellant.
William E. Weaver, for respondent.

It was error for the court to read in evidence the memorandum made by the officer. It might have been used to refresh the memory of the officer, if necessary, so that he could testify, but as original, independent evidence it was incompetent. The officer was an important witness, and the accuracy of his testimony was of great importance. We cannot say that his corroboration by incompetent evidence did not affect the result.

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