
    Hester Fleischer, as Administratrix, etc., of Louis Fleischer, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      A pa/rty surprised, by the testimony of his ownwitness — he cannot prove contradictory statements of the witness.
    
    A party surprised by the damaging testimony given by a witness called' by him is not entitled to show that the witness had made prior statements contradictory thereof.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plain, tiff, entered in' the office of the clerk of the county of New York on the 5th day of February, 1901, upon the verdict of a jury for $2,750, and also from an order, entered in said clerk’s office on the 21st day of February, 1901, denying the defendant’s'motion for a new trial made upon the minutes.
    
      
      Charles F. Brown, for the appellant.
    
      Alfred C. Cowan, for the respondent.
   O’Brien, J.:

One of the exceptions to a ruling allowing certain evidence to be introduced is fatal to the judgment.

A Mr. Warren was called as a witness by the plaintiff and no doubt to the surprise of the counsel calling him, gave testimony which was unfavorable to the plaintiff and rather tended to exonerate the defendant from liability. He was then asked if he had made an affidavit in conflict with his sworn testimony, to which he replied that he had never made an affidavit, but that he was requested to sign his name to a piece of paper by plaintiff’s attorney without having previously been asked any questions about it. The witness further .stated that the plaintiff’s counsel had told the witnesses, including himself, who were present at his office, just what testimony he expected them to give. The affidavit was then read to the witness sentence by sentence, for the purpose of showing that this witness had made a statement under oath in direct conflict with what he testified to on the stand.

In addition other witnesses were brought forward by the plaintiff to disprove the serious charge made against the attorney and to show that at his office the witnesses appeared, among them this particular witness "Warren who made and swore to the affidavit. All this was allowed over the defendant’s objection and exception, and although it seems a harsh rule, and it is one which has provoked much discussion and debate — that a party who calls a witness and who is surprised by the testimony given, may not show that the witness had made prior contradictory statements — the rule is too well settled in this State to be now disturbed.

A full discussion of this subject will be found in the case of Becker v. Koch (104 N. Y. 394), wherein it is said: “ The authorities in England were in conflict, many of the judges thinking'it allowable to prove prior contradictory statements by a witness, but the weight of authority was against it, thereby creating the occasion for an interference by the legislature with the law of evidence, which- passed an act permitting just such evidence under certain restrictions. (See C. L. Pro. act of 1854, 17 and 18 Vic. chap. 125, § 22.) The non-admissibility of such evidence, in the courts of this State is, of course, not open to discussion.” Although, therefore, in England and in many of .the .States a different rule prevails (See Steph. Dig. Ev. [Chase’s ed.] art. 131), such rule has never been sanctioned in this State, and for the error in admitting the evidence referred to, the judgment and order appealed from must be reversed and a new trial ordered-, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

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