Morton v. Smith Hoisting Co. 145 N.Y.S. 1134

PER CURIAM.

Judgment and order reversed, and new trial granted, costs to abide the event. As the witness Winkky was the only *1135witness who testified positively to contact between the timber and the tie rods, causing one of the latter to fall, if he gave other testimony on a previous trial, to which his attention was at this time called, and he denied recollection that he so testified, counsel should have been permitted to introduce such testimony in evidence. Weeks v. Fox, 3 Thomp. & C. 354; Palmeri v. Manhattan El. R. Co., 39 N. Y. St. Rep. 23, 14 N. Y. Supp. 468; Kelly v. Cohoes Knitting Co., 8 App. Div. 156, 40 N. Y. Supp. 477. This the court refused to permit him to do. See folios 221, 281, 282. See, also, 152 App. Div. 738, 137 N. Y. Supp. 829.