Montour v. Uris Builders, Inc.

In an action to recover [789] damages for wrongful death and conscious pain ánd suffering, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered August 8, 1972, in favor of defendant Are Electric Construction Co., Inc. and against plaintiff, upon a jury verdict after trial on the issue of liability alone. Judgment reversed, on the law and in the interests of justice, and new trial granted, with costs to abide the event. The appeal did not present questions of fact. Reversible error was committed by allowing evidence of a conversation between the defense witness Kalbacher and plaintiff’s witness Zachary, which evidence impeached the direct testimony previously given by Zachary. No foundation was laid for the reception of this impeachment testimony by Kalbacher (Dallas V. Lahl, 269 App. Div. 699). While ordinarily such error is not preserved for appellate review by general objection, upon the theory that it could have been corrected if specifically called to the attention of the court (Wolfe v. Madison Ave. Coach Co., 171 Mise. 707, 710), the error could not have been cured in this case since Zachary had left the jurisdiction to return to his home in Canada at the time Kalbacher was called to testify (see Matter of Levine, 247 App. Div. 19, 21). Munder, Acting P. J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.