Joseph Koslowski, an Infant, by Valentine Koslowski, His Guardian ad Litem, Respondent, v. United States Steel Furniture Company, Appellant

Joseph Koslowski, an Infant, by Valentine Koslowski, His Guardian ad Litem, Respondent, v. United States Steel Furniture Company, Appellant. Fourth Department, July 7, 1915. Witnesses — evidence — impeachment of witness — new matter brought out on cross-examination — letter written by witness. Where a plaintiff, upon cross-examination, calls out new matter from a witness sworn by the defendant, it is reversible error to admit in evidence the contents of a letter written by the witness to the plaintiff relating to the new matter, for the purpose of impeaching the witness. Appeal by the defendant, United States Steel Furniture Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga oh the 16th day of March, 1914, as corrected and amended by an order entered in said clerk’s office on the 23d day of March, 1914, upon the verdict of a jury for $10,000, later reduced to $7,000, and also from an order entered in said clerk’s office on the 23d day of March, 1914, denying defendant’s motion for a new trial made upon the minutes. James E. Neivell, for the appellant. A. Lee Olmstead, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: We are of the opinion that reversible error was committed in admitting the contents of a letter written by the witness Sundquist to the plaintiff. The letter was written after the accident and after Sundquist had left the defendant’s employ. While Sundquist was called by the defendant and gave testimony in its behalf, the letter related to new matter called out by the plaintiff’s counsel upon cross-examination. A party may not thus impeach his own witness (Power v. Brooklyn Heights R. R. Co., 157 App. Div. 400), and this rule seems to hold good where a party upon cross-examination calls out new matter from a witness sworn by his adversary. The cases are collated and discussed in Deutschmann v. Third Ave. R. R. Co. (78 App. Div. 413), where it is said: “The rule is. well settled that where, upon cross-examination, a party calls from an opposing witness matters not brought out on his direct examination, he makes the witness to that extent his own, and as to such new matters he cannot contradict him in regard to it, since the effect would be to permit one to impeach his own witness.” (Citing cases.) The examination respecting the contents of the letter was not to refresh the recollection of a hostile witness, by whose testimony counsel had been surprised, as is sometimes permitted (Bullard v. Pearsall, 53 N. Y. 230; Coulter v. American Merchants’ Union Ex. Co., 56 id. 585; People v. De Martini, 213 id. 203; Iveson v. United Traction Co., 159 App. Div. 27); but, as was specifically stated by counsel, to affect his credibility. We hold that the contents of this letter were of no probative force to show the condition of the machine, and that it could not be received for the purpose of impeaching the witness or affecting his credibility. The judgment and order should, therefore, he reversed and ' a new trial ordered, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.