Opinion
October 15, 1943.
Appeal from the Municipal Court of the City of New York, Borough of Brooklyn, WYNNE, J.
John E. Asch for appellant.
R.H. Kruppenbacher and George H. Zator for respondents.
MEMORANDUM
Judgment unanimously reversed on the law and new trial granted, with thirty dollars costs to defendant to abide the event. It was error to refuse to permit the defendant to cross-examine the infant plaintiff as to an alleged admission as to the condition of the lights made at a former trial. The defendant could prove what occurred at that trial without producing the minutes. ( McRorie v. Monroe, 203 N.Y. 426.) There was no error, however, in charging that O'Brien was operating the car as the servant of defendant. Both sides vouched for his credibility and the defendant produced no one to give a version of his employment different from that to which he testified. In view of the inclusion in the hospital records of a statement that they had been examined by an insurance company, they should not have been admitted with such notation. No opinion.
MacCRATE, McCOOEY and STEINBRINK, JJ., concur.