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At R–194 there appears the testimony of witness

In this Criminal case, the Court is unanimous in its determination that the doctrine of res ipsa loquitur is applicable to this case and, therefore, the court discussed only the arguments advanced in the dissent.

A New York Criminal lawyer said that the dissent contends that the Trial Court erred in refusing to admit into evidence a certain paper, claimed to be a report of the accident, written out by the witness after a conversation with a fellow-employee. The latter was not produced by the defendant at the trial and his address is claimed to be unknown to the defendant. It is conceded witness did not see the accident.

It is clear from the record of this trial that the paper does not qualify as a record made and kept in the regular course of business, as contemplated by CPLR § 4518(a). After having asked the witness the question as to whether this paper was kept in the regular course of business, to which there was no answer, trial counsel for the defendant made no further effort in this regard and, as a result, there was a complete failure to establish the necessary foundation, as required by the section. Its exclusion was proper. There was no arson involved and also no assault in the case.

The dissent further urges that, if it is concluded that the record was not kept in the regular course of business, then its contents are admissible because the plaintiff opened the door by her cross-examination, thereby giving the right to the defendant, on re-direct examination, to bring out all of the contents of the writing.

The Court disagreed.

At R–194 there appears the testimony of witness, given in answer to the questions of defense counsel.

The general rule as to cross-examination provides that it should be limited to matters brought out on direct examination, except where the cross-examiner seeks to inquire as to subject not brought out on direct examination, in which case he may make the witness his own. A plaintiff whose witness has been cross-examined is entitled to conduct a re-direct examination of the witness and such re-direct is confined to those matters which were brought out on cross-examination, so as to allow the witness an opportunity of explaining any new facts which were brought out.

None of the questions asked on cross-examination were addressed to what the missing employee, was supposed to have seen of the accident. In fact, there is no indication that the employee had witnessed the accident, except for the offer of proof by counsel for defendant.

The cross-examination of the witness by plaintiff’s counsel was well within the limits set by the answers which he made on direct examination. None of the questions on cross-examination were addressed to what the missing employee, was supposed to have seen of the accident.

In this connection it should be recalled that the record shows that the plaintiff was alone when the accident happened and the employee came to the scene following her exclamation of pain.

To contend that the door was opened by plaintiff’s counsel so as to make admissible the hearsay statement of the missing employee is to be indifferent to the realities of the situation. The witness was asked to give the conversation between him and employee concerning what the plaintiff said to employee about her accident. Plaintiff’s counsel never inquired as to whether the employee was an eye-witness to the accident, much less as to what he claimed to have seen. This was never raised, and to argue that plaintiff’s counsel opened the door to admit clearly prejudicial hearsay is to misread the record.

The natural result of such improper procedure would be to prejudice the plaintiff before the jury by illegal evidence.

As to the contention that the verdict returned in favor of the plaintiff was grossly excessive, suffice it to say that the record presented fair questions of fact for the jury and we see no reason why we should interfere in the result reached.

In accordance with the foregoing, the judgment herein should be affirmed, with costs and disbursements to plaintiff-respondent.

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