
    Sophie Hillesum, Resp’t, v. The Mayor, etc., of the City of New York, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed, March 5, 1889.)
    
    1. Evidence—Hearsay—'When excluded.
    In an action for personal injury to the plaintiff, caused by falling, in> consequence of a defect in the sidewalk of a street, a witness was asked: “ Do you know anybody that fell over that ? ” Held, properly excluded, as it was not certain whether the witness was required to speak of his own knowledge of any fall, z or more than his knowledge, of a person who he-had'heard had fallen.
    2. Same—When stricken out for irresponsiveness.
    A physician testified that the accident would have an effect on th® nervous system. He was then asked “whether he thought it affected that.” The witness answered "that she (plaintiff) is complaining of that now.” Held, that the evidence was properly stricken out as being irresponsive, and because the plaintiff’s complaints were inadmissible.
    3. Same—When objectionable.
    Evidence is objectionable which requires a witness to state the necessary consequences of a future or conditional state of affairs.
    4. Same—When excluded.
    Evidence which did not refer to, or tend to show, what was the physical condition of the sidewalk at the time of the accident, was properly excluded.
    5. Same—When credibility of witness not affected.
    Where it appeared that the testimony of one of two witnesses might have been affected by the existence of a liability by way of action over by the defendant against them for reimbursement for any verdict it might be called upon to pay, and there was no evidence which one was the responsible party, Held, that the announcement of the liability to the jury could not be used by them to estimate the credibility of either witness in particular.
    Appeal by defendant from order granting a motion for a new trial, made by plaintiff upon the minutes.
    
      
      Henry B. Twombly, for app’lt; M. L. Marks, for resp’t.
   Sedgwick, J.—The

action was for damages from the plaintiff’s faffing, in consequence of a defect in the sidewalk of a street, which the complaint alleged was defective, through defendant’s negligence.

The jury found for the defendant. The new trial was granted upon the exceptions taken on the trial, by the plaintiff. The case does not particularize the exceptions which were sustained by the court. It is necessary to examine all the exceptions on which the respondent relies.

The question: Do you know anybody that fell over that? was rightly excluded on the trial. It referred to the alleged defect in the sidewalk. The question had such a form that it was not certain that the witness was required to speak of his knowledge of any fall or more than of his knowledge of a person, who he had heard had fallen. The witness immediately after this question was allowed to testify that he had seen his wife fall over the defect.

A physician had testified that the accident would have an effect upon the nervous system of the plaintiff. He was then asked: And do you think it affected that? The witness not answering responsively said she is complaining of that now. This was properly stricken out, both because it was not responsive and because complaints of the plaintiff might be inadmissible, at least if not made to the physician for his professional guidance and only overheard" by him. Roche v. Brooklyn, etc., R. R. Co., 105 N. Y., 297; 7 N. Y. State Rep., 361.

Another question was properly excluded for the reason that its form was leading.

On the trial the plaintiff assumed that a witness named Mahoney would be liable to the present defendants in case-there should be a recovery against them, and that such liability might affect the credibility of Mahoney, who had testified in behalf of the defendants as to the condition of the sidewalks. Another witness was called by defendants.

He was and had been in the employment of Mahoney. He was asked, has he (Mahoney) told you, and don’t you know as matter • of fact, that he would have to pay the city any damage which the city might sustain by reason of this case ? The court was correct in excluding the question. Had the question not been objectionable in itself it was within the discretion of the court to exclude it, as the witness had said, immediately before, that Mahoney had told him nothing about his liability for the condition of the sidewalk. It was objectionable in the part that asked the witness to state the necessary consequences of a future or conditional state of affairs.

Mahoney, as a witness, was asked: Q. Don’t you know as a fact that this sidewalk was fixed in March, 1887? The accident had happened in February, 1887? This called for a categorical answer which, when given, might have been left (without any further inquiry as to what made the “fixing” of the question) to produce a confusion in the minds of the jury. The question was objectionable, as it did not appear to refer to a repairing of the defect alleged by the plaintiff, and therefore it did not tend to show what was the physical condition of the sidewalk at the time of the accident.

The plaintiff’s husband was asked: Did the plaintiff have people' by whom she had been engaged to nurse ? He answered she had about five, and she could not attend to them. The last of the answer was properly stricken out as irresponsive.

The charge of the court was in accordance with the law. The plaintiff did not prove that the accident had put her to any personal expense, nor did she prove any facts upon which the jury might assess damages.for any loss of business as a nurse.

I think it is probable that the court in granting a new-trial considered that there might have been error in refusing to charge one request of plaintiff. It was: “The defendant has a right of action over against the owner of the property in front of which the accident occurred for Ihe reimbursement of any verdict rendered against it and which if may be called upon to pay.” A particular examination of the testimony shows that the plaintiff was not entitled to such a charge, if it be assumed although not held that an owner of a house is responsible for the consequences of a defect in the sidewalk in front of his house which is not a? nuisance created by him or unlawfully maintained by him.

The case showed that the testimony of one of two witnesses only could have been affected by the existence of the liability alluded to in the request. These witnesses were the respective owners of Nos. 107 and 309 Sheriff street. The sidewalk in front of these houses was wholly or partly paved "with flagstone. The case, as made by the plaintiff, was that as she was walking along the flagging of No. 109, and had reached the line where it ended, she stepped upon the flagging of the sidewalk in front of No. 107. This latter sidewalk was from three to seven inches lower than the sidewalk of No. 109. The plaintiff testified: “I was walking along and stepped on a higher stone to a lower stone and fell as I made the step; I did not see the stone was lower than the other.” The witness most favorable to plaintiff testified that the plaintiff fell in front of 107 and 109.

The sidewalk in front of 107 was about three or four inches lower than the sidewalk of 109. There was a step between the two stones never filled up. On this and other testimony, the jury could not have found that there was any other cause of the accident than the plaintiff’s stepping from the higher level of one sidewalk to the lower level of the other, she being unaware that there was any difference in the levels. There was no testimony to show that either, or if one of the owners, which one, had the right or lawful level in front of his house. Even if it could be said that one or the other must have been the responsible party, the announcements of that to the jury could not have been used by them to estimate the credibility of either witness in particular.

I am, therefore, of opinion that the motion for a new trial should have been denied.

Order reversed, with costs, with leave to defendants to enter judgment upon the verdict.

Freedman and Truak, JJ., concur.  