
    Kate Karrigan, Appellant, v. The Ninth Avenue Railroad Company, Respondent.
    
      Negligence — evidence that a witness knew of his ‘ ‘ own knowledge ” that a car belonging to the defendant caused, the injury, improperly stricken out.
    
    In an action against a railroad company to recover damage's for personal injuries, . in which an'issue arises as to whether the defendant owned and operated the car which caused the injury or was-legally responsible for such operation, it is error to strike out the evidence of one of the plaintiff’s witnesses to the effect that he knew of his “ own knowledge that this was a car’’ of the defendant.
    Appeal by the plaintiff, Kate Karrigan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of March, 1899, upon the verdict of a jury rendered by direction .of the court, ■with notice of an intention to bring up. for review upon such appeal.an order entered in,.said clerk’s, office on the 1st day of March, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      T. D. Kenneson, for the appellant.
    
      Charles F. Brown, for the respondent.
   Van Brunt, P. J. :

This action was brought to- recover damages for personal -injuries alleged to have been sustained-on or about the 26th of November, 1896, through the negligence of the defendant. One of the issues raised by the pleadings was whether the defendant was the owner of and operating the car which caused the injury, or was legally responsible for such operation.

Witnesses were examined upon the part of the plaintiff to establish the fact that the car in question belonged to the defendant, and one of such witnesses on being asked, “ Do you know of your own knowledge that this was a car of the Ninth Avenue railroad?” answered, Yes, sir.” This question was objected to, and a motion made to strike out the answer. The objection was sustained and the motion to strike out granted.

It seems to us that the plaintiff had a right to this evidence ; and if it was claimed upon the part of the defendant that the witness was testifying without having knowledge as to the facts to which he had testified, this weakness of his testimony could have been shown upon cross-examination.

Certain papers were offered in evidence by which it was claimed that the Ninth Avenue Railroad Company had leased its railroad to other corporations, and that they were operating the road. The only testimony tending to show that the Ninth Avenue Company did not operate the road was that of the secretary of the company, who testified that ■ since the 20th of April, 1892, the date of the alleged lease, the Ninth Avenue Railroad Company had not operated any street cars in the city of New York.

Various questions were raised as to the admissibility and validity of the lease in question, which it is not necessary here to determine. The plaintiff was deprived of material’ evidence upon the issue; and the evidence upon the part of the defendant was not so conclusive as that it could be said that the rejection of the evidence of the plaintiff upon the issue in question could do no harm.

We are of opinion, therefore, that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  