On appeal from the Supreme Court, whose opinion is reported in 125 N.J.L. 403.
For the appellant, McDermott, Enright & Carpenter (John J. Ryan, of counsel).
For the respondent, Collins & Corbin (Edward A. Markley, James B. Emory and Dominick J. Marchetto, of counsel).
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. This is an appeal from a judgment of the Supreme Court, affirming a judgment of the Hudson County Common Pleas Court.
The facts are fully set forth in the opinion of the Supreme Court and the grounds of appeal urged and argued here are identical with those presented to the court below.
We concur in the finding of the Supreme Court and affirm its judgment affirming that of the Common Pleas.
Upon the question of when and how the rule of contradiction and neutralization, by and through prior contradictory statements, is to be used, reference is made to State v. D'Adame, 84 N.J.L. 386, and Wassmer v. Public Service, 122 Id. 367, and the cases following them.
However, we have reached a conclusion respecting the error alleged in the refusal of the trial court to admit in evidence Exhibit D -1, for identification, which we consider more dispositive of that question.
This was a paper-writing or a statement allegedly made by the defendant, at a time prior to the trial of the cause. He presented himself as a witness testifying in his own behalf.
When a point was reached, in his direct testimony, where in answer to questions directed at an asserted material matter in issue, he said he did not remember. The paper was then presented to him for the purpose of refreshing his recollection, which he said it did. The use of the "refreshing" statement was then at an end and not admissible in evidence. The practice in this regard is specifically and correctly laid down by Mr. Justice Case in Springer v. Labow (Supreme Court), 108 N.J.L. 68.
This refreshment of recollection of the defendant-witness did not, apparently, bring forth from him answers that were satisfactory to his counsel who then registered surprise and thereafter sought the introduction of the exhibit for the ...