18 A.D.2d 930 | N.Y. App. Div. | 1963
In a negligence action to recover damages for personal injury, loss of services and medical expenses sustained as a result of the infant plaintiff being assaulted by a fellow j pupil, William Follett, in the play area of the school operated by defendant Board of Education, in which action the defendants (namely: the board, the school superintendent Hoover, the school principal Brown, the assistant principal Stratton, and - the teachers Donnelly and Kalk), as third-party plaintiffs, served a third-party complaint against the fellow pupil Follett, as third-party defendant, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Westchester County, entered December 27, 1961 after a trial, as dismissed the complaint on the merits against the defendant board upon the jury’s verdict in its favor, and as dismissed the complaint on the merits against defendant Hoover, the school superintendent, and against the defendant Brown, the school principal, by direction of the court at the end of plaintiffs’ case. The third-party complaint was also dismissed by the coijirt; no appeal is taken and no question is raised with respect to such dismissal. Judgment modified on the law as follows: (1) by amending the first -and third decretal paragraphs so as to strike out the dismissal of the complaint on the merits as against the defendant board and against the defendant Brown; so as- to strike out the award of costs to them; and so as to limit the dismissal of the complaint and the award of costs to the defendants Stratton, Donnelly and Kalk only; (2) by severing the action as between the plaintiffs and the defendant board and the defendant Brown; and (3) by directing a new trial -as [between plaintiffs and the defendant board and the defendant Brown. As so modified, the judgment, insofar as appealed from, is affirmed, with costs to plaintiff to abide the event of a new trial. We have not considered any questions of fact. Reversal of the judgment and a new trial as to the defendant board and the defendant Brown, are required for several reasons: (1) In our opinion it was error for the trial court to exclude from evidence all of the proffered Exhibit G. This was an official report of the accident to the board by Paul A. Fairfield, its Director of Health and Physical Education. At least to the extent that it makes reference to the “ wrestling bout ” as the genesis of the -accident, the report, while perhaps cumulative, was most material in view of the issues presented to the jury. The fact that Mr. Fairfield had no personal knowledge of the accident does not affect the admissibility of his repoi’t. Since it appears without dispute that he was authorized to make the report as an agent of the board and as part of his official duties for the board, it follows that any statement therein which negatives or tends to negative the position taken by the board upon the trial, is relevant and admissible. An employer is bound by the contents of a report made by his authorized agent; and to the extent that it contains any inconsistent or contradictory statements it is admissible as a party’s declaration against interest, despite the agent’s lack of personal knowledge (Anthus v. Rail Joint Co., 193 App. Div. 571, affd. 231 N. Y. 557; Stecher Lithographic Co. v. Inman, 175 N. Y. 124, 127; Davison v. Long Is. Home, 243 App. Div. 791; cf. Urbina v. McLain, 4 A D 2d 589, 590). (2) It was also error for the