#### Mark M. Henderson, Respondent, *v.*Delpark Productions, Appellant.

First Department,

April 17, 1914.

Witnesses — use of answer to impeach witness who has not signed it — evidence — admissions.

It is reversible error to allow a plaintiff in summing up to use an answer verified by the secretary of the defendant corporation, for the purpose of impeaching the veracity of the president of the corporation, if he did not sign it.

*It seems,*that if the president had verified the answer and it had contained a statement at variance with his testimony, the discrepancy might prop erly have been used to impeach him; or, if the question had been a relevant one, the answer might have been used as an admission by the defendant.

Appeal by the defendant, Delpark Productions, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24th day of January, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

*James W. Osborne,*for the appellant.

*M. S. Guiterman,*for the respondent.

Scott, J.:

The verdict, at least so far as it relates to the extra compensation claimed by plaintiff, is so clearly against the weight of the evidence that the judgment based upon it cannot be allowed to stand. It would be unnecessary to say anything further were it not for an error which was committed in permitting an improper use to be made of the answer, which the respondent now defends with such apparent sincerity that we apprehend that a similar use may be attempted to be made of it on the new trial.

In the course of the trial an issue of fact arose between plaintiff and the president of defendant, as to whether plain*5tiff had been dismissed from defendant’s employ, or had voluntarily left it. It was not really of any importance how the relation of employer and employee had been severed, but the question of veracity, or difference of recollection between the witnesses was important for its possible bearing upon other issues as to which then testimony differed radically. Defendant’s president testified that he had discharged plaintiff. The answer alleged in terms that plaintiff had left defendant’s employ voluntarily. This answer was not verified by defendant’s president, but by its secretary, who was not a witness upon the trial. Counsel for plaintiff in his summing up was permitted, over objection and exception, to read the answer to the jury and to comment upon it, not as containing an admission of a relevant fact, hut as impeaching and contradicting defendant’s president. Such a use of the answer was clearly improper. If the president had verified the answer, and it had contained a statement at variance with his testimony upon the stand, the discrepancy might properly have been used to impeach him; or if it had been a relevant question whether or not plaintiff had voluntarily left defendant’s employ the answer might have been used as an admission by defendant; but to permit the use of an answer verified by some one else to be used to impeach the veracity of a witness who had not signed it was obviously erroneous, and we cannot say, in view of the verdict, that the jury may not have been misled thereby.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, LAUGHLIN and Clarke, JJ., concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. Order to be settled on notice.