Birnbaum v. Lord , 27 N.Y.S. 135 ( 1894 )

McCarthy, J.

This is an appeal from a judgment entered upon the verdict of a jury, awarding the plaintiff $250 damages for personal injuries caused by negligence, and from the order denying defendants’ motion for a new trial.

This involves a question of fact, and while the evidence is not very strong, yet it is sufficient to require the question of negligence to be -submitted to the jury.

There was sufficient evidence as to the ownership of wagon ■and agency of driver to have forced defendants to contradict same. Seaman v. Koehler, 122 N. Y. 646.

The evidence of Stone was admissible and relevant, as also the minutes of the former trial, which were offered for the purpose of impeaching the witness Tompkins, who had just ■sworn that on the last trial the boy Birnbaum had sworn to a ■certain state of facts.

These minutes were in the possession and control of the witness Tompkins, and admitted to be correct. They were proper, then, to prove that the boy did not swear to the facts as testified to by Tompkins.

The case was properly submitted to the jury, and we find no error.

Judgment is, therefore, affirmed, with costs.

Hewburger, J., concurs.

.Judgment affirmed, with costs.