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McPhillips v. New York, New Heaven and Hartford Railroad

39 N.Y. St. Rep. 50 Court N.Y.C.P. Decision date 1891-06-01 English

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Patrick J. McPhillips, Adm’r, Resp’t, v. The New York, N. H. & H. R. Co., App’lt.
(New York Common Pleas, General Term,
Filed June 1, 1891.)

Headnote

Evidence—Testimony given on former trial—Admissions.
Defendant introduced the testimony of the plaintiff given on a former trial of the same action. Eeld, that it was not only operative in contradiction of his present testimony, but, as the admission of a party, was competent evidence upon the issues in litigation.
Motion for reargument.
Page & Taft, for app’lt; Christopher Fine, for resp’t

—The learned counsel for the respondent is quite mistaken in the supposition that the court misconceived the evidence in the record, and confounded the evidence on a former trial with the evidence on the trial under review.

Having'laid the foundation, imperative in the case of a witness ■ not a party but here unnecessary, the defendant introduced the testimony of the plaintiff, Patrick J. McPhillips, on a former trial, as follows: “Q. What is the distance * * * as to where the train was when he ” (the intestate) “ fell ? ” A. Between the third pole, 277 feet from where he fell. Q. Did you make the measurements ? A. I made the measurement myself.1’ This, being the statement of the plaintiff in the action, was not only operative in contradiction of his present testimony i but, as

p. 51
the admission of a party, was competent evidence upon the issues in litigation. Besides, there was much other evidence of the same tendency and effect. See the testimony of Avala McPhillips and other witnesses at fols. 222, 226, 486, 487, 516, 519, 520, 526.

Motion denied.