Ashby v. Steinitz

Judgment, as amended, unanimously affirmed as to defendant Strader, with costs, and judgment, as amended, reversed on the law and facts as to defendant Steinitz and a new trial granted, with costs to appellant to abide the event. Memorandum: The verdict against defendant Steinitz is against the weight of the evidence. Furthermore, it was error not to permit the statement of defendant Strader in evidence (Geminder v. Zauderer, 8 A D 2d 703; Wachs v. Commercial Travelers Mut. Acc. Assn., 283 App. Div. 29, 33) and it was also error to instruct the jury that admissions against interest made by parties to the action had no probative force and were not binding on plaintiffs. The concession of Strader in open court that he was partly at fault did not cure this error as to Steinitz, who was Strader’s adversary (concurring opinion, Ordway v. White, 14 A D 2d 498, 499) because such admissions had probative force against Strader. This same rule applied to the testimony of plaintiff Briggs before the Motor Vehicle Bureau as well-as his previous admissions. Also, the certificate of conviction of defendant Strader, for reckless driving upon his plea of guilty should have been received (Knibbs v. Wagner, 14 A D 2d 987). (Appeal from judgment as amended by order of Oswego Trial Term for plaintiff in an automobile negligence action. The order added interest to the judgment.) Present — Williams, P. J., Bastow, Goldman, MeClusky and Henry, JJ.