SAPORITO v. CITY OF NEW YORK

Attorney(s) appearing for the Case

John M. Keegan, William F. McCauley and Joseph D. Ahearn for appellant.

Benjamin H. Siff and Aaron Benenson for respondent.

Judges FULD, BURKE, SCILEPPI and BERGAN concur with Judge VAN VOORHIS; Chief Judge DESMOND and Judge DYE dissent and vote to affirm in the following memorandum: The testimony as to whether exhibit B was an accurate photograph of the particular locus of the accident was so confused and contradictory that the Trial Judge had discretionary power to exclude it, and such a determination should be left with him and not reviewed by us (3 Wigmore, Evidence [3d ed.], § 794; and see, generally, Richardson, Evidence [9th ed.], § 117, and Roberge v. Winne, 144 N.Y. 709, 715). Furthermore, even if the exclusion was error it was, because of the cumulative nature of the photograph as proof, not so prejudicial as to require that the case be retried.