Patchin v. . the Astor Mutual Insurance Co.

Denio, J. I am not able to concur in the ruling by which one of the questions put to the witness, Heath, was excluded. Stebbins, who was qualified by his avocations and experience and his knowledge of his vessel to give an opinion, had testified in positive language to his belief in her entire seaworthiness. If it be true that when it was found she had taken firej he immediately referred the cause of the calamity to the dangerous condition of the water jackets, and made use of the strong and emphatic language attributed to him and which the defendant offered to prove by Heath, it could not be considered otherwise than a grave impeachment of his testimony. His attention *had been called to the time and occasion and to the -* person in whose presence the declaration was said to have been made, and he declared that he made use of no such expression and had no such idea. The slight discrepancy between the expression about which he was examined and the one offered to be proved, was not material. The substance, so far as was material to the case was identical, and his denial *273 was not based upon any notion of verbal difference, for ho denied entertaining any such idea as the expression suggested. I am satisfied that the judge fell into an error in excluding the evidence. I do not think any of the other rulings were objectionable ; but for the error in overruling the question to the witness, Heath, I am of opinion that the judgment should be reversed and that there should be a new trial. All the judges except Marvin, J., who was in favor of' affirming the judgment, concurred in the foregoing opinion. Judgment reversed. 1 Footnotes [1] Gilbert v. Sage, 4 Lans. 287; s. c. 57 N. Y. 639. Schell v. Plumb, 55 N. Y. 592; s. c. 46 How. Pr. 11. New York Guaranty and Indemnity Co. v. Gleason, 78 N. Y. 503.