Ando v. Woodberry

McNally, J.

(dissenting). I dissent and vote for the reversal of the judgment and for a new trial.

In this action for personal injuries, plaintiff-appellant assigns error in the exclusion of two convictions for traffic offenses arising out of the occurrence upon a plea of guilty.

On December 28, 1955, at or about 4:00 p.m., on a clear dry day, plaintiff, a police officer of the City of New York, operating a motorcycle, was struck by defendants’ automobile at the intersection of Fifth Avenue near 110th Street, Borough of Manhattan, City of New York. Plaintiff’s evidence was that defendant-respondent Edward Nichols, the operator of the automobile, made a left turn without prior warning and collided with plaintiff’s motorcycle causing the injuries complained of.

On April 6,1956, Nichols appeared in Manhattan Traffic Court and entered a plea of guilty to violation of subdivision 2 of section 110 of the Police Traffic Regulation (failing to make a proper turn) and section 97 (failing to signal before turning). The said violations arose out of the occurrence of December 28. 1955. On the trial of this action, the convictions of Nichols for the said traffic offenses were offered in evidence as admissions agaiiist interest and excluded. The sole ground of this appeal is that the trial court committed reversible error in excluding said evidence.

*134.Schindler v. Royal Ins. Go. (258 N. Y. 310) and Matter of Rechtschaffen (278 N. Y. 336) establish that evidence of a conviction is admissible against a party as prima facie proof of the facts involved. In Walther v. Neivs Syndicate Go. (276 App. Div. 169), this court observed that Schindler and Rechtschaffen involved cases in which the party convicted was seeking to obtain an advantage despite his own wrongdoing. In Walther, the court had before it and passed upon the admissibility of a conviction of the defendant after trial for a traffic offense solely in respect of the defense of the action. After an exhaustive review of the authorities, including Schindler and Rechtschaffen, Walther concluded there was no controlling authority in this State and that this court was free to determine whether or not proof of a defendant’s conviction after trial for a traffic infraction arising out of the event is admissible against the defendant in a suit for personal injuries grounded in negligence. This court there held that the certificate of the defendant’s conviction after trial for a traffic infraction arising out of the occurrence was not admissible as primary evidence to establish negligence in a civil action. Walther, however, expressly reserved the question whether the rule should be the same or different as to the plaintiff in a negligence action who has been convicted after trial of a traffic offense. In addition, Walther (p. 176) distinguished and approved of the admissibility of a conviction grounded upon a plea of guilty to violation of traffic laws or rules.

In Stanton v. Major (274 App. Div. 864), the Appellate Division, Third Department, held admissible against the defendant a certified copy of the record of conviction entered on his plea of guilty to a charge of reckless driving as prima facie evidence of negligence. In People v. Formato (286 App. Div. 357) the same court (pp. 363-364) concluded that Walther v. News Syndicate Co. (supra) is authority for the proposition that a conviction for a traffic infraction on a plea of guilty is admissible against the defendant as an admission against interest. In People v. Formato (supra) the court held admissible against the defendant as primary evidence thereof convictions of prior gambling offenses upon a plea of guilty.

In Same v. Davison (253 App. Div. 123) the Appellate Division, Fourth Department, held admissible against a defendant in a civil suit a plea of guilty to a violation of a city ordinance in an action for negligence.

In Max v. Brookhaven Development Corp. (262 App. Div. 907), the Appellate Division, Second Department, relying upon *135Roach v. Yonkers R. R. Co. (242 App. Div. 195), held inadmissible against a defendant a certificate of conviction upon a plea of guilty to a charge of reckless driving in respect of the accident involved. However, in Giessler v. Accurate Brass Co. (271 App. Div. 980) that court expressly overruled Roach v. Yonkers R. R. Co. (supra) and held that proof of the defendant’s conviction upon the charge of maintaining the nuisance alleged in the complaint would be admissible as prima facie evidence of the facts involved in an action to enjoin the defendant from operating the factory in such a manner as to constitute a nuisance.

The public policy underlying Walther v. News Syndicate Co. (supra) with respect to the inadmissibility of a conviction after trial for a traffic offense is irrelevant to the question of the admissibility of an admission or declaration against interest evidenced by a plea of guilty. Section 355 of the Civil Practice Act, found to be the expression of public policy in Walther v. News Syndicate Co. (supra), proscribes impeachment of a witness by means of a conviction for a traffic infraction. The court there said (p. 174): “It is true that this statute relates only to the matter of impeachment of a witness, and not to the probative force of a prior judgment of conviction for a traffic violation. Nevertheless, the rule of public policy thus declared seems to go beyond the mere question of privilege or credibility of a witness. As was noted in Matter of Hart v. Mealey (287 N. Y. 39, 43, supra), ‘ the Legislature recognized the weakness of evidence of a traffic infraction as proof of facts which may have been involved ’ (emphasis supplied).”

.Nevertheless, the court there distinguished a plea of guilty from a conviction after trial as follows (p. 176): “ This case must also be distinguished from those situations in which evidence of conviction on a plea of guilty to violation of traffic laws or rules of the road is admissible against the defendant in a civil action. In such cases the record or proof of the defendant’s guilty plea is received not as a judgment establishing a fact or the truth of the facts in support of the charge of negligent driving, but as a declaration or admission against interest.”

Section 355 of the Civil Practice Act has no application to a declaration or admission against interest. Consequently, the public policy relied on in Walther v. News Syndicate Co. (supra) does not affect the question of the admissibility of a declaration or admission against interest.

In a civil action admissions against interest by a party are evidence against him and the only relevant considerations are *136were they made and their effect. (Gangi v. Fradus, 227 N. Y. 452; Nagel v. Paige, 264 App. Div. 231; Jacobs v. Gelb, 271 App. Div. 101.) We believe that there is sound logic in holding that an admission by a party, whether by plea of guilty or otherwise, is admissible and a proper subject for jury consideration. Assume, for example, that during the course of a trial a witness admits he committed an act in violation of a statute or ordinance, it could not be reasonably argued the admission would not be admissible against him in the subsequent trial of an action to which he was a party. There is no sound basis for according less probative force to an admission against interest in a judicial proceeding than to one made extrajudicially, as was the fact in Gangi v. Fradus (supra).

There is no issue in the case at bar with regard to the making of the admissions. The sole issue is as to their probative value or weight and this is exclusively within the province of the jury. If, as suggested by the trial court, the guilty pleas were prompted by considerations destructive of the probative value of the facts thereby admitted, such as the defendant’s desire to avoid expenditure of time incident to a trial or the practical consideration of paying a small fine as opposed to incurring the substantial expense of a trial, they are matters for the consideration of the jury in determining the probative value or weight to be assigned to the pleas of guilty. There are many considerations which may prompt a plea of guilty to a traffic offense which may detract from the credibility of the facts thereby admitted. However, these are circumstances which are properly submitted to the jury for their consideration under appropriate instructions. Ño public policy is offended by the admission of the declarations against interest.

In Gangi v. Fradus (supra, pp. 456-457) the court set out the elements determinative of the effect of admissions as follows: ‘1 If found to exist, the jury in determining their effect, or probative value or weight, must apply to them the rule of reason. The effect they have, in reason and sound judgment, upon the mind of the jury, in view of their language, character, the time when and person to whom they were made, the circumstances and conditions attending their making, and the other facts in evidence, is the effect they should have upon the claim of the party. In case they were made in ignorance of the facts or in an abnormal state of mind, or were based in part upon mere opinion, or were made casually or thoughtlessly or insincerely, or under like or analogous conditions or circumstances, they may, in reason, deserve slight consideration or value or none *137at all. In case they were made nnderstandingly and deliberately, are of pure fact within the knowledge of the declarant, and were made under conditions and circumstances conducive to veracity, and are not overborne by the other facts in evidence, they may, in reason and sound judgment, establish a cause of action or a defense. Whether they are of the one class or the other, or intermediate, is for the determination of the jury. The effect they shall have upon the issues being tried is for their determination. The trial justice may not instruct as to the rank assignable to them or the influence to be yielded by them. The jury may accept a part as true and put aside a part as not true. In those respects the law has no gouge. The jury shall determine whether or not they were made; if made, the conditions and circumstances under which they were made and the effect thereof, and their probative weight and value, which may range from the lowest, or none at all, to conclusiveness. The trial justice may profitably and without error, as the evidence justifies, bring to the jury’s attention and guidance the rules of law that the probative effect and value of an admission depend upon the conditions and circumstances under which they were made, the time which has since elapsed and the cogency or reasonableness of the explanation, if any, of the making and other like grounds or conditions.”

The jury’s verdict was 10 to 2 and the only witnesses who testified in respect of the occurrence were the plaintiff-appellant and the defendant-respondent Nichols. Under these circumstances, it cannot be said it was not prejudicial to exclude the admissions against interest of the defendant-respondent Nichols.

Valente and Stevens, JJ., concur with Breitel, J. P.; McNally, J., dissents and votes to reverse in opinion in which M. M. Frank, J., concurs.

Judgment affirmed, with costs to the respondents.