#### Frank Scott, Appellant, *v.*Joseph Hartog, Respondent.

(Supreme Court, Appellate Term,

January, 1912.)

Evidence — Documentary evidence in general — Stenographer’s notes — Judgment.

A stipulation in an action to recover damages for personal injuries sustained in an automobile collision, that the minutes of the trial of a former suit against another defendant for personal injuries in the same casualty could be received in evidence “ without the necessity of calling the stenographer to prove ” the same, does not render the minutes admissible unless they aré otherwise material and competent' evidence.

*127And, where the trial court received the transcript of the stenographer’s minutes in evidence and considered it and marked it as an exhibit' over the defendant’s objection, a judgment thereafter rendered in plaintiff’s favor should be reversed.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, rendered in favor of the defendant, and from an-order denying a motion for a new trial.

Lester M. Friedman, for appellant.

Gregg- & McGovern' (John T. McGovern, of counsel), for ' respondent.

Lehman, J.

The plaintiff sues for damages sustained through a collision with ian automobile in charge of a chauf- . feur in the general employ of the defendant. ■ Before this action was brought, the plaintiff had -sued the defendant’s wife, who was the owner of the automobile; but the complaint was dismissed on the ground that the plaintiff had failed to show absence of contributory negligence on the part of his driver and had failed to show that the chauffeur was the agent of the defendant in that action.

That action was not between the same parties as this action, and apparently the complaint was dismissed for failure- of proof. The judgment was, therefore, no adjudication of the issues presented in this- action. The testimony presented in the former -action could not be read at this trial, except to prove admissions by the parties or, upon cross examination, after proper foundation wás laid, to impeach the credibility of the witnesses by showing that they had testified differently at the earlier trial. .

When this trial began, it was stipulated on the record that “ it has been agreed that we can use upon the trial transcript of part of the testimony adduced on the former trial without the necessity of calling the stenographer to prove said transcript.” This stipulation simply exempts the parties from producing the stenographer to prove the correctness of the *128transcript of the minutes, but does not render the minutes admissible, unless they are otherwise material and competent evidence.

The plaintiff’s driver went on the stand and testified to the circumstances surrounding the accident. His testimony is very much at variance with his testimony in the earlier action. The defendant did not read the questions and answers given at the earlier trial to the witness, nor did he attempt to introduce in evidence the transcript of the previous testimony. He did, however, at the close of the case, furnish the trial justice with a transcript of his previous testimony. The trial justice apparently considered this transcript as an exhibit and permitted the defendant, when the case was settled, to introduce this transcript in evidence and then had it marked as an exhibit.. The plaintiff objected to its admission at that time, both on the grounds that it had never been offered in evidence at the trial 'and that no proper foundation for its admission had been laid. The objection should have been sustained on both grounds. Upon the settlement of the return, the trial justice has a right to amend the case only to show what actually happened at the trial; he has no right at that time to take additional evidence. He had,- furthermore, no right to consider the contradictions between the testimony of the driver at this trial and the testimony at the previous trial, without allowing the witness the opportunity to explain these contradictions.

Judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

■Seabuby and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.