Larkin v. Nassau Elec. R. Co.
| Decision Date | 12 April 1912 |
| Citation | 205 N.Y. 267,98 N.E. 465 |
| Parties | LARKIN v. NASSAU ELECTRIC R. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Departent.
Action by Edward Larkin, as administrator of Irene Larkin, deceased, against the Nassau Electric Railroad Company. From a judgment of the Appellate Division (142 App. Div. 906,126 N. Y. Supp. 1135), affirming a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial granted.D. A. Marsh, for appellant.
James W. Prendergast, for respondent.
The action is to recover the damages sustained by the plaintiff through the death of the intestate caused by the alleged negligent operation of a car of defendant upon its track in the borough of Brooklyn. The judgment for the plaintiff, entered upon the verdict of the jury, has been affirmed by the Appellate Division.
[1] One Kelly was a witness for the plaintiff, and gave material testimony in his favor. On cross-examination he was shown a typewritten statement, to which his name was subscribed, describing the circumstances of the accident and contradicting in material particulars his testimony. He testified that the statement was written in his presence by the operator of a typewriter, who while making it asked him questions and wrote on the typewriter when he had answered and when it was done he signed his name to it and the signature thereto was his; that he did not read it over or swear to it. In form it was sworn to before a commissioner of deeds.
The defendant thereupon offered in evidence the statement, and upon the objection of the plaintiff that it was incompetent it was excluded. This ruling, duly excepted to, was error prejudicial to the defendant.
[2] Any statement of a witness made out of court, orally or in writing, if contradictory of a material part of his testimony, may be, if properly proven, introduced in evidence, not as substantive proof of the truth of such statement, but as tending to discredit him. If it is sought to prove the expression of an opinion inconsistent with the testimony, it is enough if the opinion is so incompatible with the facts testified to by the witness that an honest mind knowing the facts would not be likely to entertain the opinion. Repugnant statements or contraries cannot be true, and the fact that the witness has made them tends to show that he is untrustworthy through carelessness, an uncertain memory, or dishonesty. Nor need there be a direct and positive contradiction. It is enough that the testimony and the statements are inconsistent and tend to prove differing facts.
[3] A witness cannot be impeached by statements alleged to have been made by him before or after he has testified until he has been adequately warned by the cross-examination that those statements will be later offered against him, and thus he or the party calling him be enabled to correct the testimony given or prepare a denial or an explanation of the statements. In case the statements are oral, the warning is given by asking the witness, in substance and effect, if he did not at a given time and place in the presence of or to a person or persons specified make the alleged contradictory statements. Patchin v. Astor Mut . Ins. Co., 13 N. Y. 268;Sloan v. New York Central R. R. Co., 45 N. Y. 125;Loughlin v. Brassil, 187 N. Y. 128, 79 N. E. 854. In case the statements are in writing and unsubscribed, the paper must be shown or read to the witness and marked for identification and, if subscribed, the signature, and, in case he so demands, the paper must be shown to him. The attention of a witness having been thus called to the contradictory statements, they may be proven and introduced in evidence in the regular course of the trial.
[4][5] They may, of course, be proved by the admissions of the witness made at the time his attentionwas called to them. If he fully and clearly admits the making of them as provable by the impeaching party, further proof of them is...
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Barbour v. People
...may be admitted "in whole or in such parts as its purpose of discrediting the witness requires or justifies" (Larkin v. Nassau Electric R.R. Co., 205 N.Y. 267, 270, 98 N.E. 465). Thus, Petitioner will be permitted to use prior inconsistent statements of witnesses called by him provided they......
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Port Authority Trans-Hudson Corp. v. Hudson & Manhattan Corp.
...343--a, now CPLR 4514; Matter of City of New York (Brooklyn Bridge), 50 Misc.2d 478, 480, 270 N.Y.S.2d 703, 706; Larkin v. Nassau Electric R.R. Co., 205 N.Y. 267, 98 N.E. 465; Kesten v. Forbes, 273 App.Div. 646, 78 N.Y.S.2d The excluded reports also tended to prove facts differing from thos......
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Laboy v. Demskie, 96 Civ. 2890 (RWS).
...is admissible for impeachment purposes. Id. at 326, 413 N.Y.S.2d at 337, 385 N.E.2d at 1265 (quoting Larkin v. Nassau Elec. R.R., 205 N.Y. 267, 269, 98 N.E. 465, 466 (1912)). "In case of doubt, ... the balance should be struck in favor of admissibility, leaving to the jury the function of d......
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Carriage House Motor Inn, Inc. (Motel Property) v. City of Watertown
...common law of this state for more than a century (see, Sloan v. New York Central R.R. Co., 45 N.Y. 125 see also, Larkin v. Nassau Elec. R.R. Co., 205 N.Y. 267, 98 N.E.2d 465; Rodriguez v. Zampella, 42 A.D.2d 805, 346 N.Y.S.2d 558; City of Buffalo v. Ives, 55 Misc.2d 730, 733, 286 N.Y.S.2d 5......
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Table of Cases
...Ct New York County 2000), affirmed 305 AD2d 106, 757 NYS2d 740 (1st Dept 2003), §15:131, Form 15:20 Larkin v. Nassau Electric R.R. Co. , 205 NY 267, 269, 98 NE 465, 466 (1912), §§25:30, 25:41, 25:42 Larkin v. Present Co. , 152 AD2d 1005, 544 NYS2d 696 (4th Dept 1989), §15:116 LaRose v. Corr......
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Cross-Examination of Lay Witnesses
...tends to show that he is untrustworthy through carelessness, an uncertain memory, or dishonesty.” [ Larkin v. Nassau Electric R.R. Co. , 205 NY 267, 269, 466 (1912).] An inconsistent statement need not be a direct and positive contradiction. It is enough if the testimony and the statements ......
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Cross-Examination of Lay Witnesses
...tends to show that he is untrustworthy through carelessness, an uncertain memory, or dishonesty.” [ Larkin v. Nassau Electric R.R. Co. , 205 NY 267, 269, 466 (1912).] An inconsistent statement need not be a direct and positive contradiction. It is enough if the testimony and the statements ......
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Cross-Examination of Lay Witnesses
...or dishonesty.” 25-9 Cross-Examination of Lay Witnesses §25:32 CROSS-EXAMINATION OF LAY WITNESSES [ Larkin v. Nassau Electric R.R. Co. , 205 NY 267, 269, 466 (1912).] An inconsistent statement need not be a direct and positive contradiction. It is enough if the testimony and the statements ......