(dissenting). In my opinion, the judgment appealed from should be reversed and a new trial granted. It was proper under the circumstances to permit the defendant to introduce proof upon cross-examination of the plaintiff that he had made a prior inconsistent statement in a writing subscribed by him. *129(Civ. Prac. Act, § 343-a.) It could further have been shown that the signed writing had been filed with a State agency without revealing that the paper was an application for benefits under the Workmen’s Compensation Law. The grievous error occurred, however, when the document was received in evidence in its entirety over plaintiff’s objection and defense counsel was permitted to read a substantial portion of it to the jury, including the statement that plaintiff had presented a claim for compensation. This started a chain of events that prejudiced plaintiff’s right to a fair trial. Plaintiff’s counsel in an attempt to remedy the injury that had been done, then brought out that plaintiff had received no compensation benefits.
The court in its charge undertook a lengthy discussion of plaintiff’s right both to take compensation benefits and to sue a third party for alleged negligence. Among other things, the court told the jury that the plaintiff “ can take compensation against his employer — and it doesn’t make any difference how the accident happened when he does that. He doesn’t have to prove negligence. He doesn’t have to prove freedom from contributory negligence. All he has to show is that he was hurt. Or he doesn’t have to accept compensation, if he doesn’t want to. He may proceed against the party — we call it the third party — who is responsible for the injury. If he does that he doesn’t lose his rights to compensation. He can have that, in any event. Whichever is more, that he can have.”
Again plaintiff’s counsel in an attempt to remedy the quite apparent disastrous effect of the court’s statements requested the court “ to instruct the jury that they are not to take the issue as to another forum in their deliberations with respect to this case.” Whereupon the court said, and these were the last words the jury heard before retiring: “ I will tell the jury this, the plaintiff has an absolute right to come here and try to get more money than he could in compensation. The fact that he can get something in compensation has nothing whatever to do with this case. That is a right granted to him by law. He can come here and try to get what a jury will give him. It is only if you give him nothing that he has a right to go back to compensation, but you should really not take that into consideration.”
Just a few years after the enactment of the Workmen’s Compensation Law, this court in Posnick v. Crystal (181 App. Div. 660, 661) had occasion to consider the question of permitting evidence to be received that plaintiff’s employer was insured under the Workmen’s Compensation Law. In reversing a judg*130inent in favor of the defendant, we said that “ [t]he only possible purpose of introducing this evidence under the circumstances was to achieve the natural result of leading the jury to suspect or infer that plaintiff had been or could be compensated by merely making application under the Workmen’s Compensation Law and, therefore, his case should not be seriously regarded. This was distinctly harmful and may well have accounted for the verdict.”
This authority was followed in Regan v. Frontier Elevator & Mill Co. (211 App. Div. 164, 166), where it was said that “ [s].uch insistence by defendant’s counsel on the plaintiff’s right under the Workmen’s Compensation Law as occurred in this case might well influence the jury toward the erroneous view that the plaintiff’s loss should find compensation in part at least from his employer under the provisions of that statute. (Posnick v. Crystal, 181 App. Div. 660.) The situation is analogous to that which arises when reference is made on behalf of plaintiff to defendant’s protection by insurance. The courts have long and consistently condemned such practice in vigorous terms. [Citing cases.] ” Although no exceptions, had been taken to the rulings of the court, the verdict was set aside in the interests of justice.
Zimber v. Kress (225 App. Div. 16, 18) presented a situation in some respects analogous to the instant case. There the plaintiff’s rights to benefits under the Workmen’s Compensation Law were developed upon the trial. There, as here, the court in its charge expounded at length upon the plaintiff’s right to sue a third party and, if unsuccessful, return for workmen’s compensation. In reversing the judgment for the defendants, Mr. Justice Sears writing for a unanimous court said that “ [i]t was no subject for consideration of the jury that the plaintiff might, if he failed in the present action, secure certain compensation from his employer, or the insurance carrier. This was an ordinary negligence case, and the Workmen’s Compensation Law had nothing to do with it. Whether or not a claim had been filed by the claimant was entirely immaterial as long as an award had not been made. ’ ’
Here the defendant would have been fully protected if it had been permitted to cross-examine plaintiff in regard to any contradictory statements made by him in a signed writing filed with an agency of the State of New York. The jury would thus have known the circumstances under which the statement was made and that it was not a casual writing made without due consideration. Pressing his advantage, however, defense counsel not only *131succeeded in having the entire document received in evidence but proceeded to read most of it including the statement that “ I hereby present my claim to the Chairman, Workmen’s Compensation Board, for compensation for disability
This, when considered with the court’s charge, deprived plaintiff of a fair trial. “ Courts of justice exist for the purpose of securing a fair determination of controversies. When counsel resort to improper practices to win a verdict, they imperil the verdict which they thus seek. ’.’ (Nicholas v. Rosenthal, 283 App. Div. 9, 13.)
The majority opinion, while recognizing these rules of evidence, reaches the conclusion that all of this was necessitated by virtue of an inconsistent statement made by the plaintiff at a time when he was not suing a third party and when there was no motive for factual distortion as to how he had sustained his injury. Even if we accept this as a necessity, and I cannot, it seems to me that there is no conceivable justification for the iteration and reiteration in the court’s charge upon the subject of the plaintiff’s right to sue a third party for negligence and, if unsuccessful, his right to return for compensation benefits. It is difficult for me to understand how — in the language of the majority opinion — the jury was so instructed, among other reasons, “ to safeguard the interests of plaintiff”. When, as here, close questions of fact were presented to the jury, it not only did not safeguard any rights of the plaintiff but destroyed any possibility of recovery.
I cannot see how the rule concerning multiple admissibility of evidence has any application to this state of facts. The only evidentiary fact here admissible was the inconsistent statement made by the plaintiff in the notice of claim. The document was not the evidentiary fact. Section 343-a of the Civil Practice Act requires that proof of the prior inconsistent statement may only be received when it is made in a writing subscribed by the witness or made under oath. This is a procedural requirement that makes the alleged contradictory facts admissible in evidence. When we speak of multiple admissibility of evidence, we are referring to facts offered and admissible for one purpose and which facts are not inadmissible because they do not satisfy the rules of evidence in some other capacity. It is not my understanding that because certain facts are admissible that an entire document which is highly prejudicial may be received in evidence under the multiple admissibility rule when the prejudicial matter may be kept from the jury.
*132The majority go forward on the premise — with which there can be no disagreement — that “By and large [jurors] are intelligent, just and fair ”. But it has been my understanding that “ [o]ur system of admissibility [of evidence] is based on the purpose of saving the jurors from being misled by certain kinds of evidence. Their inexperience in analyzing evidence, and their unfamiliarity with the chicanery of counsel, distinguish them from the judge in this respect. As long, then, as the jury system is retained, certain fundamentals (at least) in our rules of Evidence must be retained.” (1 Wigmore on Evidence [3d ed.], § 8c, p. 261.)
Here, by one grievous error, the subject of workmen’s compensation was injected into the issues presented to the jury. It was unnecessary and could have been avoided. No matter how “ intelligent, just and fair ” twelve jurors may have been, no cautionary words of the court could subtract from the fact that they were plainly told that the plaintiff could proceed against the present defendant and thereby the plaintiff did not lose his rights to compensation and further that if the jury gave him nothing, he had a right to take compensation. While the court did instruct the jury that they should not take all of this into consideration, it seems to me that it would be naive to believe that they did not do so.
The judgment appealed from should be reversed and a new trial granted.
Peck, P. J., Botein and Babin, JJ., concur with Cohn, J.; Bastow, J., dissents and votes to reverse and grant a new trial, in opinion.
Judgment affirmed, with costs.