(dissenting). In this action for damages for personal injuries a verdict in favor of defendant was rendered after a jury trial. Plaintiff appeals from the judgment entered thereon claiming prejudicial errors in the admission of evidence.
Shortly after midnight on October 11, 1952, plaintiff, a seaman, had left a tavern at South Ferry Plaza and crossed the street to a point where a bus owned by the City of New York was standing. Plaintiff testified that he put his right foot on the lower step and, with one hand, grasped a stanchion located a few inches from the top of the step; that as he did so the door folded into a closed position and the bus started off fast, throwing him off balance with his arm caught inside the bus, causing him to be dragged along the highway. He fell on his right hip “ The bus was running, and I was dragging, the last I remember ”. He suffered severe injuries to his right leg, his right side and his right hip. Upon admission to the Beekman-Downtown Hospital the same morning, he was found to be in profound shock, and there was a strong alcoholic odor on his breath. (See physician’s report, hospital records, signed by Nurse C. Hangett.) On October 12th, according to the hospital records, he smelled of injected alcohol, and on October 14th he developed delirium tremens, a disease which, according to the testimony, is the product of prior habituation with alcohol, but which may also be brought on by shock.
On behalf of defendant, the bus driver testified that when it was time for him to proceed on a trip north, he closed the doors, waited for a few seconds, and started up slowly. After proceeding twenty or thirty feet he heard a yell. He stopped the bus and found plaintiff lying on the ground behind the vehicle. That was the first he had seen plaintiff. The driver stated that the bus could not operate with the doors open.
*256A lady, Barbara Setkulich, who was a passenger at the time of the accident, called by defendant, said that as the bns started np, she felt it go over something like a bump. She looked through the rear window and for the first time observed plaintiff. She had no recollection as to anything else. The trial court permitted defendant to place into evidence a statement which this witness had made and signed a few hours after the accident in which she stated that plaintiff and his friend were not near the front door of the bus at any time; that “ This accident was not the fault of the bus driver ”.
Upon cross-examination defendant was permitted to elicit from plaintiff over exception that he had been previously convicted of intoxication on at least six different occasions. It is urged that such ruling constituted prejudicial error. Plaintiff was the only witness who gave testimony as to his version of how the accident occurred. The bus driver told a directly contradictory story. Thus plaintiff’s credibility was a sharp issue. The cross-examination was competent for the purpose of testing his credibility. It was, of course, not proper for the purpose of establishing that he was intoxicated at the time of the accident. Nor is there any showing that it was offered for such a purpose. A specific instruction as to the effect of the testimony might readily have been obtained but no request of that nature was ever sought.
The rule is well settled that a witness may be cross-examined concerning any previous vicious, illegal or immoral acts which he may have committed. (People v. Sorge, 301 N. Y. 198, 200; People v. Webster, 139 N. Y. 73, 84.) The manner and extent of the cross-examination lies within the discretion of the Trial Judge. (People v. Malkin, 250 N. Y. 185, 197; People v. Bilanchuk, 280 App. Div. 180, 184.) Evidence that a witness has been convicted of being drunk and disorderly is admissible as affecting his credibility. (People v. Burns, 33 Hun 296.) This rule has been followed in other jurisdictions. (McLaughlin v. Mencke, 80 Md. 83; Kock v. State, 126 Wis. 470; State v. Campbell, 166 Mo. App. 589; see, also, Harding v. Great Northern Ry. Co., 77 Minn. 417.) Drunkards are defined in the Code of Criminal Procedure as disorderly persons. (§ 899, subd. 4, see, also, Penal Law, § 1221.) Proof that a witness has been convicted of intoxication on six different occasions is competent to show that the witness might not have respect for the truth or for the sanctity of an oath. (People v. Richardson, 222 N. Y. 103, 109.)
*257Plaintiff argues, citing section 350 of the Civil Practice Act, that only convictions for a crime, i.e., a felony or a misdemeanor, are admissible for the purpose of impeachment; that an offense short of a crime, such as disorderly conduct or being adjudged a disorderly person is not a proper matter of inquiry on that issue. However, the language of section 350 does not preclude questioning into any past illegal or improper act on the part of a witness, even though there may have been no conviction for the offense. (People v. Sorge, 301 N. Y. 198, 200, supra.) "Where the inquiry concerns a felony or a misdemeanor, a denial of conviction does not conclude the cross-examiner, but it permits the introduction in evidence of the record of such conviction for the purpose of affecting the weight of this testimony. In a case involving disorderly conduct or intemperance or some other offense which involves moral turpitude, the cross-examiner is bound by the answers of the witness. Here plaintiff admitted that he had been repeatedly adjudged guilty of intoxication. In the circumstances the court in a proper exercise of discretion committed no error in its ruling by permitting this evidence.
Plaintiff also claims that it was prejudicial to allow defendant to introduce into evidence a statement signed by the lady witness Setkulich. Prom her testimony given in chief it was apparent that she had but little recollection of what had occurred at the time of the accident. She admitted, however, signing a statement within a few hours after its occurrence. It was properly received by virtue of the provisions of section 343-a of the Civil Practice Act, in view of the fact that it might well be regarded as a prior inconsistent statement made in writing subscribed by her. The trial court was careful to point out to the jury that the statement was received solely for the purpose of impeaching the credibility of that witness. As to the weight to be accorded to it, the court said:
‘ ‘ The City also called as a witness the lady named Barbara Setkulich, who was a passenger on the bus. You heard her testimony given on the stand today as to what she knew about the accident. Because of her inability to recall some matters contained in a statement subscribed by her on the morning of the accident, I admitted her statement in evidence. You will consider her testimony today, and the matters contained in the statement, and you will determine what credence to give to her entire testimony.
“ In other words, the statement has not been received as proof of the matters therein set forth, but for whatever weight you *258desire to accord her testimony. There is a statement there the accident was not the driver’s fault. That statement you will disregard, because you are the judges of the facts. You will take the statements themselves, and also her testimony, and determine what weight to accord to it.” (Italics supplied.) The italicized portion correctly states the apposite law. (Matter of Roge v. Valentine, 280 N. Y. 268, 276-277; Underhill v. Slutzky, 260 App. Div. 882.) In view of the court’s instruction, no error was committed in the ruling with respect to this statement.
It is also argued that the court erroneously permitted a police officer to testify that plaintiff’s companion (now deceased), at the time of the accident was apparently intoxicated. Such testimony was obviously improper, but the error was harmless. In the circumstances of this case it should be disregarded because no substantial right of plaintiff’s was affected thereby. (Civ. Prac. Act., § 106; Post v. Brooklyn Heights R. R. Co., 195 N. Y. 62.)
Plaintiff had a fair trial. The propriety of the court’s charge was not questioned, nor does plaintiff assert any error in passing upon requests. The charge was adequate and just to both sides. Clearly the accident could not have occurred in the manner described by plaintiff. The injuries sustained by him were not caused by any negligent act on the part of defendant. The verdict of the jury was in accord with the credible evidence, and it should not be disturbed.
Accordingly, I dissent and vote to affirm.
Peck, P. J., Dore and Breitel, JJ., concur with Bastow, J.; Cohn, J., dissents and votes to affirm in opinion.
Judgment reversed, with costs to the appellant to abide the event.