Opinion
October 21, 1940.
Present — Lazansky, P.J.. Carswell, Johnston, Taylor and Close, JJ.
Appeals by plaintiff in an action for damages for personal injuries (a) from a judgment in favor of defendant, entered on a jury verdict, and (b) from an order denying plaintiff's motion to set aside the verdict and for a new trial. Judgment and order unanimously affirmed, with costs. The prior inconsistent written statement of one of the witnesses was properly received in evidence to impeach him (Civ. Prac. Act, § 343-a) and was competent for that purpose only. There was an erroneous instruction by the court in relation to the statement; plaintiff did not except to that instruction but in effect expressly endorsed the charge, which became the law of the case. ( Cooper v. Brooklyn Queens T. Corp. 249 App. Div. 774; Pettis v. New York State Electric Gas Corp., Id. 487, 490; Halpin v. New York Railways Corp., 250 id. 613, 615; and vide Fitzpatrick v. International Ry. Co., 252 N.Y. 127, 141.) A party may avoid the foregoing rule only by showing that he did not have a fair trial. ( Haefeli v. Woodrich Engineering Co., 255 N.Y. 442, 445, 446; Muldoon v. Dock Contractor Co., 199 App. Div. 733.) The record here does not disclose that plaintiff did not have a fair trial, but quite the contrary. The alleged error complained of in the charge did not affect a substantial right, and must be disregarded. (Civ. Prac. Act, § 106.)