Birtwhistle v. Public Service Railway Co. 2 N.J. Misc. 427

Pee Curiam.

This suit is brought to recover damages for injuries to an automobile. The trial resulted in a verdict for the plaintiff *428for $2,000. This was the second-trial of the case. The verdict will have to be set aside on the ground of a trial error. The plaintiff was permitted to use- the printed book of the prior trial for the purpose of proving the case. He ivas permitted to ask the witness, over the objection of the defendant’s counsel, whether snch a witness at the prior trial had been asked certain questions and-had given a certain answer. This was repeated many times against the caution of the trial court. The grounds of appeal from one to thirteen allege such questions and answers were improper and injurious error. We think they were, and fall outside of the principle applied in the case of State v. Kwiatkowski, 83 N. J. L. 653. The principle underlying the admission of such questions and answers is surprise, and, unless that is apparent, the right to use that method of asking questions, with their answers, does not exist. The book might just as well have been read to the witness in this ease, and the witness asked if chat was his testimony. As the case must be retried, it is pertinent to add, we find no- other error in the record. The judgment of the Essex Circuit Court is reversed.