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Geer v. New York City Railway Co.

99 N.Y.S. 483 Court N.Y. App. Term Decision date 1906-06-01 English

Delivered by CLINCH, J.

Contents

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p. 483
GEER v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate Term.
June 1, 1906.)

Headnote

Witnesses—Examination—Refreshing Memory—Writings Which may be Used.
A complaint in an action, sworn to by a witness on the flay of the occurence concerning which he desired to refresh his memory, is within the rule permitting a witness, for the purpose of refreshing his memory, to consult any memorandum made at the time of the transaction, provided that, when his memory is so refreshed, he is able to testify to the facts as being within his own knowledge.
[Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, § 879.]
Appeal from Municipal Court, Borough of the Bronx, Second Dis- ' trict.
Action for a penalty for refusing to give a transfer by Edmund S. Geer against the New York' City Railway Company. From a judgment dismissing the complaint, plaintiff appeals.
Reversed, and new trial ordered.
Argued before GILDERSLEEVE, DAVIS, and CLINCH, JJ.
E. V. R. Ketchum, for appellant.
William E. Weaver, for respondent.

Plaintiff was asked: “On the 12th day of January, 1906, did you board a car going north at Whitehall street ?” Before answering he attempted to consult a memorandum for the purpose of refreshing his memory. To this defendant objected. It appeared that the plaintiff had made a memorandum of the facts; that he had taken that memorandum to his attorney, in whose office a copy was made; that subsequently the original was lost; and that the copy he desired to consult in court was made from a copy in his attorney’s possession. Plaintiff stated that he could not testify as to the date, car, etc., without refreshing his memory. The court refused to allow him to consult this memorandum. Plaintiff’s attorney then asked that he be allowed to refresh his memory from the complaint, which was verified on the day when the transfer was refused; his action being to recover a penalty for such refusal. Plaintiff swore that he signed the complaint after reading it over, and knew it to be true at the time he signed it. He was then asked: “In looking at that complaint, and refreshing your memory by that, can you tell me on what day you took this trip ?” An objection to this question was sustained, and the complaint was dismissed.

It is well settled that for the purpose of refreshing his memory a witness may consult any memorandum made at the time of a transaction or occurrence, whether made by himself or another, provided that, when his memory is so refreshed, he must testify to the facts as being within his own knowledge. It is evident that a complaint sworn to by the witness on the very day of the occurrence concerning which he desired to refresh his memory is properly within this rule.

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