O'Connor v. International Railway Co.

Per Curiam: Where a witness for an adverse party has made a written statement containing matter inconsistent with his testimony, such written statement, after its genuineness has been established, either by the admission of the witness or other legal proof, may be put in evidence in its entirety as a part of the case of the party offering it, unless objection is made to specific portions of the statement as irrelevant or incompetent, in which case the irrelevant or incompetent portions should be excluded and only the balance received and read into the record. (Larkin v. Nassau Elec. R. R. Co., 205 N. Y. 267; Hanlon v. Ehrich, 178 id. 474; Gaffney v. People, 50 id. 416, 422; Romertze v. East River Nat. Bank, 49 id. 577.) While the record in the present case does not contain the statements of the witnesses Dale P. DeWire and Josephine DeWire, enough appears to show that such statements contain matter relating to the occurrence which gave rise to the action in conflict with the testimony of the witnesses given at the trial. In this respect the case resembles Hanlon v. Ehrich and Romertze v. East River Nat. Bank (supra), in each of which cases the exclusion of the statements was held error, despite the fact that the statements themselves were not before the appellate court. The practice followed by the defendant’s counsel was strictly in accordance with the above-stated rule. Although the learned trial court repeatedly advised counsel that he might read the contradictory portions of the written statements and the plaintiff’s counsel stated that his objection was directed only to such portions of the statements as were not contradictory, nevertheless, the plaintiff’s counsel failed to point out what portions of the statements he considered contradictory and what not contradictory and even declined to make the attempt to agree with defendant’s counsel in this matter. Neither did the learned trial court undertake to rule as to what portions of the statements were and what were not contradictory. The general objection did not require the court to do this. Under such circumstances the defendant’s counsel was entitled to place the entire statement in evidence. The suggestion that he might read all contradictory matter without any indication as to what was and what was not deemed contradictory put a burden upon him which, under the rule, he was not required to assume. The court’s ruling, therefore, resulted in [413] erroneously excluding the entire statements. The error resulted in denying to the defendant a substantial right. The judgment should be reversed on the law and a new trial granted, with costs to the appellant to abide the event. All concur, except Taylor, J., who dissents in a memorandum. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.