Opinion
December 16, 1974
In an action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered August 3, 1973, in favor of defendant, upon a directed verdict. Judgment reversed, on the law and in the interests of justice, and new trial granted on the issues of liability, with costs to abide the event. The appeal presented no questions of fact. The evidence in this case presented a question of fact which was within the sole province of the jury to determine. Plaintiff's version of the incident was corroborated by an independent witness and was not incredible as a matter of law. It was error for the trial court to direct a verdict under CPLR 4401, since under these circumstances defendant was not entitled to judgment as a matter of law. Further error was committed by the trial court when it (1) restricted cross-examination of a defense witness who had been convicted of a crime, with respect to the acts underlying the conviction ( People v. Sorge, 301 N.Y. 198, 201; Moore v. Leventhal, 303 N.Y. 534, 538), and (2) received a screwdriver and certain checkbooks into evidence, over objection, without a foundation showing that these items had been found on the person or in the possession of plaintiff. Martuscello, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.