Opinion
May 12, 1959
Judgment in this consolidated action unanimously reversed on the facts and on the law, and a new trial ordered as to all parties, with costs to abide the event. The action resulted from a three-car collision, and presented a close question of negligence or freedom therefrom as between Zauderer and Geminder. John Demos, a party to the action, and a witness, identified a photostatic copy of a report that he made to the Motor Vehicle Bureau concerning the accident. The report, excluded upon objection when it was offered, contained certain admissions by the witness, and a statement that in some material respects could be deemed inconsistent with Demos' testimony. Under the circumstances, the exclusion of the statement was error. "The proof need not be direct and positive contradiction; it is enough that the testimony and the statements are inconsistent and tend to prove differing facts." ( Nappi v. Falcon Truck Renting Corp., 286 App. Div. 123, 126, affd. 1 N.Y.2d 750; see, also, Reed v. McCord, 160 N.Y. 330, 341.) In an action where the issues were as sharply drawn as here, the exclusion of the statement may well have been prejudicial.
Concur — Breitel, J.P., Rabin, M.M. Frank, Valente and Stevens, JJ.