(dissenting). I dissent and vote for reversal and new trial. By the opinion of the majority the issue is limited to whether the admission of the improper evidence was prejudicial.
A witness cannot be impeached by showing a former expression of opinion inconsistent with the conclusion which may be drawn and established by the facts testified to by him. (Schell v. Plumb, 55 N. Y. 592, 599, affg. 48 How. Pr. 11; Matter of Eno, 196 App. Div. 131, 158.) Since it is agreed the statement “ was admissible *714only in so far as it might tend to impeach the credibility of the driver * * * ” and “ no proper foundation was laid for the impeaching statement * * * ” and “ the jury was not instructed concerning this limitation upon the use of the evidence at any time during the trial,” and “ it was not referred to in the charge,” in my opinion it should be held prejudicial error. Under the circumstances it seems that any objection, general or otherwise, to the evidence was sufficient, especially as the witness was called solely for the purpose of giving the inadmissible testimony which thus was called specifically to the attention of the court. The prejudice thereby placed upon the defendant was not cured, because defendant’s counsel found himself forced to recall the driver to rebut the statement by denial. Placed in the prejudicial position he had no other recourse. If anything, the prejudice seems to have been aggravated, as the statement and denial may then have assumed magnitude in the minds of the jurors which was not lessened by any instruction of the court. Since it cannot be said with accuracy whether the jurors were led to their conclusion by a consideration of the inadmissible testimony as direct proof or merely as affecting credibility, it would seem that justice requires a new trial.