Birnbaum v. Lord — 58 N.Y. St. Rep. 12

Majority

p. 12

Joseph Birnbaum, an Infant, by Guardian, etc., Resp’t, v. Samuel Lord et al., App’lts.

(New York City Court, General Term,

Filed January 18, 1894.)

Headnote

Witness—Impeachment.

The minutes of a former trial, where a witness testified that plaintiff swore to a certain state of facts thereon, are admissible to impeach him.

Appeal from a judgment in favor of plaintiff.

Henry Tomkins, for app’lts; Edward v. Stone, for resp’t.

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 defendant’s motion for a new trial. This involves a question of fact and while the evidence is not very strong, yet it is sufficient to require the question of negligence to be submitted to the jury. There was sufficient evidence as to the ownership of wagon and agency of driver to have forced defendant to contradict same, Seaman v. Koehler, 122 N. Y., 646 ; 33 St. Rep., 729 . The evidence of Stone was admissible and relevent as well also the minutes of the former trial, which were offered for the purpose of impeaching the witness Tompkins who had just shown 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.

Hewburger, J., concurs.