Opinion
May 13, 1965
Judgment unanimously reversed on the law and a new trial ordered, with $50 costs to appellant to abide the event. This action for the wrongful death of one plaintiff's intestate and for personal injuries to the other plaintiffs arose from a collision between an automobile driven by the deceased and an ambulance. The trial court committed two serious and prejudicial errors in the exclusion of testimony. The city offered the Medical Examiner's report to show the presence of 3-plus alcohol in the brain of the deceased. The report was excluded. The report was clearly admissible ( Iovino v. Green Bus Lines,
277 App. Div. 1002). The objections that the witness did not know whether this was a report of the Medical Examiner's office were captious. The second error was the exclusion of the witness Foy's memorandum book. On cross-examination this witness' testimony was attacked as a recent fabrication. On redirect the memorandum book was offered to show that his testimony was consistent. For this purpose it should have been admitted ( Zaulich v. Thompkins Sq. Holding Co., 10 A.D.2d 492). The issue of whether the accident was caused by deceased's intoxication was squarely presented, and the rulings made were highly prejudicial to the defendant.
Concur — Breitel, J.P., Rabin, Valente, Eager and Steuer, JJ.