Jerome Conway, Appellant, v. Pablo Rivera, Respondent, 21 A.D.2d 655

Judgment dismissing the complaint at the close of plaintiff’s case in a personal injury action reversed, on the law and on the facts, and a new trial directed, with costs to abide the event. Since the issue before the court was whether plaintiff had been struck by one of the vehicles as a result of the accident, the statement in respondent’s accident report that the Roger vehicle (Car No. 2) “mounted sidewalk and struck a pedestrian” is material and its exclusion was error. The accident report supplies a vital link in plaintiff’s chain of proof. Respondent’s admission constituted original evidence. (Gangi v.

Fradus, 227 N. Y. 452; Richardson, Evidence [8th ed.], § 288.) Other evidence enabled the jury to find that plaintiff was the pedestrian and that immediately after the occurrence he was transported by ambulance to Lincoln Hospital for emergency treatment. A prima facie ease was thus established. Further, the statement was admissible to impeach the testimony of the declarant since it was a statement inconsistent with his testimony. “The proof need not be ‘ direct and positive contradiction ’ ° * * it is enough if it be inconsistent with, testimony or tend to prove different facts (Larkin v. Nassau Elec. R. R.

Co., 205 N. Y. 267, 269; Kesten v. Forbes, 273 App. Div. 646); or ‘material inconsistencies’ (Nagel v. Paige, 264 App. Div. 231).” (McCoy v. Gorenstein, 282 App. Div. 984-985.) Concur—Breitel, J. P., McNally, Eager and Steuer, JJ.; Stevens, J., dissents and votes to affirm.