#### Peter McGurk, Respondent, *v.*The New York City Railway Company, Appellant.

(Supreme Court, Appellate Term,

May, 1905.)

Witness — Making own on cross-examination bound by answer.

Where the plaintiff, in an action for personal injuries received in a collision between his truck and a street car, cross-examines the motorman as to new matter which makes him the plaintiff's own witness, plaintiff is bound by the answer of the motorman.

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, tenth district, borough of Manhattan, after a trial before the court without a jury.

William E. Weaver, for appellant.

Ingram, Root & Massey (Albert P. Massey, of counsel),, for respondent.

Dowling, J.

The assignment of error relied upon in this appeal is a ruling of the trial court upon the admission of certain evidence under objection. The action is one brought to recover for damages sustained by plaintiff, a truck driver, while driving his truck along West Broadway in this city, by a collision therewith of one of defendant’s cars, as alleged through the negligence of defendant. Defendant’s motor*393man, called as a witness on its behalf, had testified to his recollection of the occurrence in question when, at the close of his recross examination he was asked: “ Q. Did you see this gentleman, Mr. Tennessee, standing there ?” To which he answered: *“*I don’t know who he is, I did not see him.” Tennessee was the first witness called on plaintiff’s behalf and had testified as an eye-witness of the occurrence. The motorman, Harvey, was then asked whether Tennessee had not asked him why he, Harvey, ran into the truck, to which he had made an abusive reply, and Harvey denied the same absolutely. The witness, Tennessee, recalled, was then, against defendant’s objection, allowed to testify that he had asked the motorman immediately after the accident: “ Do you know that you hurt a fellow ?” to which the motorman made the abusive reply as to which he had been questioned. The motorman’s alleged reply was in no way relevant or material as to the matter at issue; it contained no admission or declaration as to the cause of the collision; it in no way contra'dicted any of his testimony brought out upon direct examination. The only purpose of offering the proof, and the effect of its receipt, were to impress the jury with the idea of Harvey’s lack of credibility. But the matter in question, *i. e.,*the conversation with Tennessee, was not brought out on the direct examination of Harvey, nor was he questioned regarding any such topic; the plaintiff’s counsel, therefore, by asking him the question as to any conversation with Tennessee, made him the plaintiff’s witness as to such new matter and could not contradict him thereupon; and as the only effect of Tennessee’s evidence was to impeach Harvey upon a point of conversation between them which threw no light on the cause of the accident and not to give any material evidence upon any issue in the case it was improperly received. Kay v. Metropolitan St. R. Co., 163 N. Y. 447; Becker v. Koch, 104 id. 401.

Scott and Tbuax, JJ., concur.

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