(dissenting). I dissent from the opinion of Justice Foster and vote to sustain the order of the trial judge granting new trials. I think that these verdicts are against the clear weight of the evidence and that a finding that defendant’s car was being used with his permission is against the great weight of the testimony. However, I concede that there are questions of fact in the case and I agree with Judge Foster that the question to the witness Ignatik, “ Where were you going? ” was proper. I think, however, the trial judge clearly erred in receiving the statement prepared in the attorney’s office on March 24, 1941, and which reads: “At that time Woody Smith, a friend of ours, and whom I knew was in the employ of St. Mary’s Catholic Church of Ellenville, was driving a Buick automobile belonging to Father Nilan, asked us whether we would care to accompany him, in the Buick automobile to Cragsmoor where he was to pick up a priest and bring him back to Ellenville for the evening services.” This testimony enlarged that previously given by the witness and clearly was prejudicial. It was pure hearsay. The fact that defendant had shown that this witness made a prior inconsistent statement did not warrant this proof. The defendant had a perfect right to do that under section 343-a of the Civil Practice Act. The only purpose of this statement was to fortify the witness’ own prior testimony. For that purpose it is clearly inadmissible. (20 Am. Jur., Evidence, § 458, and cases there cited.)
Schenck, J., concurs.
Order reversed on the law and facts and judgment reinstated, with costs.