Opinion
May 11, 1967
Judgment entered on December 16, 1966, in favor of plaintiff and order entered on January 9, 1967, denying defendants' motion to vacate said judgment on the ground that it erroneously included interest, unanimously reversed, on the law and on the facts, and a new trial ordered, with $50 costs and disbursements to abide the event. Plaintiff's attorney improperly cross-examined defendants' witness, Kassner, at length on collateral matters not relevant to the issues being litigated, and by use of a tape recording which was not in evidence. In effect, the attorney became an unsworn witness by informing the jury that he was reading the statements quoted in his questions from a "verbatim transcript" of the witness' conversation with plaintiff's principal. "Thus the jury had for its consideration matters which, under the rules of evidence on collateral issues and credibility, were clearly not admissible. This immaterial and * * * incompetent and irrelevant evidence became, in effect, primary evidence." ( People v. Reger, 13 A.D.2d 63, 70.) Any subsequent action by the trial court, in its effort to minimize the damage caused by the incompetent and prejudicial evidence, was much too late. In addition, the trial court committed prejudicial error in permitting testimony from Ostrager "a person interested in the event" (CPLR 4519), concerning his loan transaction with the decedent. The defendants' objections, properly interposed to such testimony, were not waived by their subsequent cross-examination of Ostrager with regard to the testimony improperly admitted.
Concur — Stevens, J.P., Eager, Capozzoli, and McGivern, JJ.; Steuer, J., concurs in the following memorandum: In addition to the foregoing, the record is replete with irregularities and improprieties. While no one of these was in itself sufficient to mandate reversal, in the aggregate they reflect such an appeal to prejudice that the interests of justice would best be served by a new trial.