Opinion
November 29, 1943.
Action to recover damages for a death that took place when an automobile bus, driven by decedent, struck a pillar on the left hand side of the roadway while, it is alleged, he was attempting to avoid colliding with defendant's truck. Judgment, entered on the verdict of a jury in favor of plaintiff, reversed on the law and a new trial granted, costs to abide the event. The questions of fact have been considered and a new trial is not granted thereon. In addition to showing the suits pending against the defendant, the defendant should have been permitted to show that certain of the plaintiff's witnesses had settled claims against the bus company, the consideration therefor, and whether or not contradictory statements were made in connection therewith. The resolution of the main issue of the case depended largely, if not entirely, upon consideration of oral testimony by two sets of witnesses; and under such circumstances a fair submission requires that the evidence relating to interest, bias and credibility be suitably developed so as to aid the triers of the facts. The fact that the witnesses accepted payments from the bus company in settlement of their claims against that company does not justify the inference of its liability ( Goldstein v. Albany Yellow Cab Co., 249 App. Div. 701); but such fact may bear on the interest, bias or credibility of the witnesses. ( Keet v. Murrin, 235 App. Div. 882, affd. 260 N.Y. 586; Iaquinto v. Bauer, 104 App. Div. 56, 58.)
Carswell, Adel and Lewis, JJ., concur; Close, P.J., and Taylor, J., dissent and vote to affirm, with the following memorandum:
The admission on cross-examination of the excluded proof claimed to bear upon the credibility of plaintiff's witnesses Bigazzi might well have been illegally prejudicial to plaintiff. Discretion vested in the trial court to exclude it. That such discretion was properly exercised appears when we consider the statement of defendant's counsel at folios 97 to 99 of the record, which statement is, in effect, an offer of proof, and indicates clearly the prejudice to plaintiff which would have resulted from the admission of the proof by the learned Trial Justice.