author: Fuchsberg, J. Jasen, Jones and Meyer, JJ.

text:
    Fausto Caprara, Respondent, v Chrysler Corporation et al., Appellants, et al., Defendants.
    Argued November 12, 1980;
    decided January 20, 1981

      POINTS OF COUNSEL

      Sheila L. Birnbaum and William R. Meagher for Appellants.
    I. The lower courts erred in holding evidence of postaccident design change to be admissible. (Barry v Manglass, 55 AD2d 1; Weiner v Serps Auto Wreckers, 24 NY2d 845; Cahill v Kleinberg, 233 NY 255; Getty v Town of Hamlin, 127 NY 636; Xavier v Grunberg, 67 AD2d 632; Croff v Kearns, 29 AD2d 703, 22 NY2d 718; Bolm v Triumph Corp., 41 AD2d 54, 33 NY2d 151, 71 AD2d 429; Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471.) II. The trial court erred in refusing to instruct the jury to disregard Burrill’s stricken testimony as to the effects of the postaccident ball joint design change. (Tomaschoff v Stapleton Drug Co., 263 App Div 728; Schreiber Travel Bur. v Standard Sur. & Cas. Co., 240 App Div 279.) III. The trial court erred in submitting the case to the jury, as a defective manufacture and assembly case, after receiving and retaining in the record evidence bearing on the issue of defective design. (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Bolm v Triumph Corp., 33 NY2d 151; Codling v Paglia, 32 NY2d 330; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Rivera v Berkeley Super Wash, 44 AD2d 316; Torrogrossa v Towmotor Co., 56 AD2d 558, 44 NY2d 709; Durham v Metropolitan Elec. Protective Assn., 27 AD2d 818.) IV. The jury’s verdict, even as reduced by the court below, is excessive as a matter of law in that neither lower court discounted the award to present value. (Zaninovich v American Airlines, 26 AD2d 155; Dullard v Berkeley Assoc. Co., 606 F2d 890; Hollwedel v Duffy-Mott Co., 263 NY 95; Greck v New York Cent. R. R. Co., 21 AD2d 776; Chiarello v Domenico Bus Serv., 542 F2d 883; Osborne v Miller, 38 AD2d 298; Wolfe v General Mills, 35 Misc 2d 996.)

      Robert M. Cohen, E. Stewart Jones, Sr., and Alfred C. Purello for respondent.
    I. Proof of postaccident design changes was properly admitted. (Barry v Manglass, 55 AD2d 1; Weiner v Serps Auto Wreckers, 24 NY2d 845; Cahill v Kleinberg, 233 NY 255; Getty v Town of Hamlin, 127 NY 636; Croff v Kearns, 29 AD2d 703, 22 NY2d 718; Martin v Dierck Equip. Co., 43 NY2d 583; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Cardona v South Bend Lathe Co., 72 AD2d 758.) II. Burrill’s testimony was improperly stricken and there was no error due to the jury’s not being informed that it was stricken. (Fuller v Preis, 35 NY2d 425; Kletnieks v Brookhaven Mem. Assn., 53 AD2d 169; People v “R”, 36 AD2d 546; Badke v Barnett, 35 AD2d 347; Meiselman v Crown Hgts. Hosp., 285 NY 389; Coates v Peterson & Sons, 48 AD2d 890; Jones v National Biscuit Co., 29 AD2d 1033; Tarlowe v Metropolitan Ski Slopes, 28 NY2d 410.) III. There was no error with regard to the manner of submission of the case to the jury. (McCormick v State of New York, 51 AD2d 28; Di Carlo v Ford Motor Co., 65 AD2d 597; Northeastern Ind. Park v Ackroyd & Sons, 51 AD2d 614; Hileman v Schmitt’s Garage, 58 AD2d 1029; Mashly v Kerr, 47 NY2d 892; Beliefeuille v City & County Sav. Bank, 40 NY2d 879; Guaspari v Gorsky, 29 NY2d 891; Tomaino v Tomaino, 68 AD2d 267; Doty v Maniccia, 58 AD2d 937, 44 NY2d 840.) IV. The jury’s verdict should not be further. reduced. (Zaninovich v American Airlines, 26 AD2d 155; Wolfe v General Mills, 35 Misc 2d 996; Dullard v Berkeley Assoc. Co., 606 F2d 890; Chiarello v Domenico Bus Serv., 542 F2d 886; Spadaccini v Dolan, 63 AD2d 110; Neddo v State of New York, 194 Misc 379, 275 App Div 492, 300 NY 533; Richards v South Buffalo Ry. Co., 54 AD2d 310.)
   OPINION OF THE COURT

Fuchsberg, J.

Central to the issues on this appeal is the admissibility of proof of a postaccident design change in support of a products liability cause of action submitted to a jury on an alleged manufacturing defect.

The plaintiff, Fausto Caprara, received a verdict on each of two causes of action, one in negligence and the other in strict products liability, against Chrysler Corporation and Chrysler Motors Corporation (Chrysler), which designed, manufactured and marketed a Dodge Coronet automobile Caprara was operating at the time of the occurrence which gave rise to this case. The Appellate Division having since affirmed on the facts and the law, though the facts were virgorously contested in the first instance, they must now be taken most favorably to the successful plaintiff (Matter of Kornblum Metals Co. v Instel Corp., 38 NY2d 376, 379; CPLR 5501, subd [b]). Chrysler does not dispute that plaintiff made out a prima facie case.

On that basis, we note that, according to Caprara, he was driving the vehicle into a familiar downhill curve on Congress Street in the City of Troy at 25 to 30 miles per hour when, as he attempted to turn his steering wheel to navigate the turn, “the wheel seized right up”, causing the car to swerve out of control and crash with consequential injuries which include quadreplegia. An experienced driver, whose familiarity with automobiles was heightened by employment in an automobile shop, plaintiff also testified that the steering mechanism had never been altered from the condition it was in when the car was sold by the defendants a year earlier and that, in the intervening time, it had functioned uneventfully.

The parties also produced an avalanche of experts. Of particular pertinence to this appeal is the testimony of plaintiff’s witness William G. Burrill, an engineer specializing in automobile failure analysis, who, with the assistance of ah auto mechanic, had examined the untampered wreck at the shop to which it had been taken after the crash. Burrill and the mechanic implicated a defective lower front ball joint, which helps carry the weight of the car, as the cause of the accident. They found all other parts which could have contributed to the mechanical failure experienced by the plaintiff in good condition.

Specifically, these witnesses established that, though the automobile had only traveled some 9,000 rather than the 80,000 to 150,000 miles the ball joint concededly was intended to last, by actual measurement, it displayed an amount of wear so excessive that it had reached the replacement point and no longer met the State’s official motor vehicle test requirements. Moreover, they went on to explain that, in this condition, it was possible, especially at a time when a downhill shifting of weight and a left hand turn would combine to put stress on the right front, for the joint to move into a chance position in which it could suddenly produce precisely the kind of binding effect Caprara described.

Also figuring on this appeal is the testimony of Daniel W. Doran, supervisor of Chrysler’s steering and suspension department, whom plaintiff also elected to call. In the course of his examination, it was developed, over Chrysler’s objection, that, nearly four years after the plaintiff’s accident, the appellants had modified the design of the joint by adding a plastic insert which eliminated the play which could wear down the ball. Doran further admitted that, for about eight years prior to the Caprara accident, he and Chrysler knew that General Motors had already introduced a substantially similar design change. Although Doran agreed that the movement which the plastic removed could have resulted in wearing, he insisted that the modification was functionally irrelevant and had been adopted solely to discourage unscrupulous mechanics from inducing motorists to replace ball joints prematurely. Returning to the stand, Burrill countered that the design change would serve to alleviate the excessive attrition to which he earlier had attributed the accident-producing malfunction. At this juncture, of course, the plaintiff’s case, as Chrysler concedes, took on aspects compatible with both manufacturing and design defect theories, each a recognized element on which a strict products liability case may be grounded (Robinson v Reed-Prentice Dir. of Package Mach. Co., 49 NY2d 471, 478).

Yet, in sending the case to the jury, the trial court decided, sua sponte and with the concurrence of Chrysler, to submit the products liability case solely on a theory of defective “manufacture and assembly”. As it had on an implied warranty count, it expressly ruled out submission of the design theory as such, apparently in the interest of simplifying the case. Nevertheless, under circumstances hereinafter detailed, the Trial Judge denied defendants’ motion to strike Burrill’s testimony on the effect that the Chrysler design change would have had on the ball joint’s durability. As to the proof supplied through Doran on the subsequent change in ball joint design, at the request of Chrysler and without exception, in its charge the court advised the jury as follows: “I instruct you that this evidence alone and by itself does not establish that the ball joints in the plaintiff’s car were defective. The fact that there are one or more different designs or that there is a design change to a given product does not establish that there is any defect in any particular design, and I so charge you as a matter of law.”

In addition, the court submitted plaintiff’s conceptually unrelated negligence cause of action.

This as background, we now turn to the two contentions on which Chrysler, in the main, posits its quest for a new trial. One is that it was reversible error to admit the evidence of a postoccurrence change in the ball joint design altogether. The second arises from the Trial Judge’s failure to instruct the jury to disregard the Burrill testimony on that subject. We believe both are without merit.

Since the Burrill testimony touches on both points, we treat first with the defendants’ request that the jury be told to disregard what this witness had had to say on the difference the plastic insert would have made to the functioning of the accident-producing ball joint. The procedural genesis for this argument, an attack on the witness’ qualifications as an expert, took the form of a motion to strike, solely on appellant’s assertion “that Mr. Burrill acknowledged the fact that he was not an expert with regard to design of ball joints”. This characterization, presumably made from memory some three weeks after Burrill had testified, went too far. A more studied reading of Burrill’s testimony reveals that the witness never suggested that he did not have a professional understanding of ball joints. In substance, he merely agreed that he was not a designer of and had never participated in constructing one.

This limitation on his background did not necessarily disqualify the witness from testifying on the mechanics and merits of ball joints. As part of his engineering and automobile accident reconstruction background, Burrill, who had supplemented his undergraduate degree in mechanical engineering by completing graduate studies at Rensselaer Polytechnic Institute, had served as consultant to almost every major American automotive manufacturer. In addition, even gainsaying the formal training he enjoyed, his practical experience included actual disassembling and analysis of some 100 ball joints. As may be true, for example, of a knowledgeable music critic who has never written a note, Burrill’s competency could just as well have derived from the real world of everyday use as from that of the laboratory. As the court said in Meiselman v Crown Hgts. Hosp. (285 NY 389, 398), “[l]ong observation and actual experience, though without actual study [may] qualify a witness as an expert” (see, also, Delair v Gaudet, 4 AD2d 736, 737 [engineer qualified by education and experience to give expert testimony on the adequacy of the installation of a heating plant, despite having never installed one]). Accordingly, it was well within the province of the trial court, the one entrusted with the primary responsibility to pass on an expert’s qualification, to have found him qualified.

Indeed, we know the court initially found him so, for it denied the motion to strike. Only when it was renewed as part of a long series of in-chambers requests to charge, made as the case was drawing to a close, did the court indicate that it would grant the motion, and then only to the extent of striking out Burrill’s testimony on design. Then, demurring to a demand that it advise the jury of its ruling, the court stated, instead, that it would handle the matter in its charge. In fact, it never did so. For its part, the Appellate Division opined on review that it would have been an abuse of discretion to have granted the motion. As we see it, contextually, the failure to advise the jury to disregard the testimony in question may be construed as an ultimate de facto decision not to do so. On that premise, we conclude that it was not error for the trial court to have rested on the ruling it announced in its original disposition of the motion.

Now reaching the broader and more basic question of the role of postaccident change in this case, we start by reiterating the long accepted proposition that, in a negligence suit, proof of a defendant’s postaccident repair or improvement ordinarily is not admissible. The reason for applying this rule of evidence to that kind of case is clear. Since at the heart of such an action is either affirmative conduct in creating a dangerous condition or a failure to perceive a foreseeable risk and take reasonable steps to avert its consequences, proof that goes to hindsight rather than foresight most often is entirely irrelevant and, at best, of low probative value. Where such evidence becomes admissible on some other theory or on another issue, such as control, impeachment or feasibility of precautionary measures, almost invariably Trial Judges have thought it best, lest the jury look upon it as an acknowledgment of negligence, to accompany its receipt with appropriate limiting instructions. Although the potential for prejudice would appear to provide ample reason for this cautious approach, some writers have bolstered it by also suggesting that an opposite rule would discourage defendants from repairing dangerous conditions in order to avoid generating evidence against themselves (see, generally, 2 Wigmore, Evidence [Chadbourn rev, 1979], § 283; McCormick, Evidence [2d ed], 666-669; Richardson, Evidence [10th ed — Prince], §§ 168, 221).

Be that as it may, it is the rule that Chrysler claims was violated by the introduction of the evidence of post-accident design change. Recognizing that the question is one of first impression in this court, it would have us hold in principle that this exclusionary practice is as applicable to a strict liability claim as it is to one posited on common-law negligence alone.

Meeting this issue, we do not track unknown terrain. When we adopted the theory of strict products liability as the basis for a cognizable cause of action, we hearkened to the fact that a “developing and more analytical sense of justice, as regards both the economics and the operational aspects of production and distribution has imposed a heavier and heavier burden of responsibility on the manufacturer” (Codling v Paglia, 32 NY2d 330, 339). In this response to a growing societal commitment to product safety, we stressed the need to overcome the inordinately difficult problems of proof which face contemporary consumers who suffer at the hands of articles of commerce whose proclivities to injure so often are within the sole ken of those who design and manufacture them (Lambert, Touchstones of Tort Liability, 33 ATL LJ 378, 402-403).

To that end, under the evolved doctrine of strict products liability, the scienter that is so vital to the negligence suit need not be shown. The shift so wrought is from fault to defect. No longer does anything turn on whether the defendant knew or reasonably could have been expected to know of the defect. Stigmatizing the manufacturer as negligent serves no legal purpose. In easing the path to proof, we have even gone so far as to announce that it is not even essential to a prima facie strict products case that the defect be isolated, for, if a plaintiff “has proven that the product has not performed as intended and excluded all causes of the accident not attributed to defendant, the fact finder may * * * infer that the accident could only have occurred due to some defect” (Halloran v Virginia Chems., 41 NY2d 386, 388). So, while a producer is not an insurer and its product need not be accident proof, it will not be shielded by the fact that it and its employees put forth their best and most meticulous efforts. If the product can be found to be defective when it leaves their possession, if the defect was a substantial factor in producing plaintiff’s injuries, without more the defendant, “the one in the best position to have eliminated those dangers”, must respond in damages (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 387)*.

This contrast between negligence and strict products liability law is dramatic. In the former, that a defendant acted with due care will exonerate it from liability to the most seriously injured plaintiff. But, in strict products liability, it is no longer any answer that the defendant injured the plaintiff carefully. Those who market products must stand behind them.

It follows that the logic behind the exclusionary rule, born in a negligence setting, where, absent negligence, liability could not exist, affords little, if any, support for the slavish application of the rule to cases brought on a legal theory so antithetical to the strictures of negligence law that respected scholars have suggested that “the determination of whether a reasonably prudent manufacturer would put the product on the market must be made with the assumption that the manufacturer knew of the dangerous condition of the product” (Wade, On Product “Design Defects” and Their Actionability, 33 Vanderbilt L Rev 551, 567 [1980]). One need not adopt this statement to recognize, that it breathes the spirit of strict products liability.

In alleviating the problems of proof consumers formerly faced in such cases, it cannot have been intended to countenance an evidentiary rule which would so sweepingly exclude postaccident design evidence of a defect simply because it touches on prior conduct which under present law is irrelevant to liability (Twerski, Rebuilding the Citadel, The Legislative Assault on the Common Law, 15 Trial No. 11, at pp 55, 58 [Nov., 1979]). Beyond that, the very economic realities that shaped these legal changes — among others, the growing market share of the mass manufacturer, the well-nigh universality of insurance, the escalation of governmental regulation — undermine any assumption that it is necessary to pay the price of sheltering defendants in strict products liability litigation from evidentiary use of their product changes in order to persuade them to make improvements to which self-interest must propel them in any event (see 2 Weinstein’s Evidence, par 407 [02], at pp 407-9— 407-10, and 1979 Supplement, atpp 110-111; Note, Products Liability and Evidence of Subsequent Repairs, 1972 Duke LJ 837, 848-850; Note, Evidence of Subsequent Repair, Yesterday, Today and Tomorrow, 9 U Cal Davis L Rev 422). At the very least, the balance that, in the traditional negligence cause, was weighted to avoid the prejudice rather than to find the relevancy is tipped the other way in a strict liability suit.

Consonant with the inapplicability of the blanket exclusionary rule to strict products liability cases, a restriction to which we today give our approval, in the present case the evidence of design change was supportive of the “manufacturing and assembly” defect theory on which the trial court sent the strict liability case to the jury. The juxtaposition, both by verbal description and physical examination, of a joint assembled with a plastic insert and one without, by offering a graphic explanation of the slack eventually taken up by the insert, was bound to help the jury understand the defect on which the plaintiff relied. It tended, too, to indicate that the appellants themselves eventually formed the opinion that the ball joints in Caprara’s car had a potential for movement when installed. And, it added to the probability that it was this defect rather than other causes that produced the accident. Thus, reasonable persons in the exercise of their independent judgment could have found the evidence relevant and material. Nor need the proof have been conclusive for it to be probative. There is no good reason why, as suggested by the dissenters, such evidence should be admitted only when absolutely necessary or as a last resort. To so relegate it would ignore the fact that, in truth-finding, it is at times the quality and at times the quantity which carries conviction.

We thus conclude that the challenged evidence was properly received, most certainly on the strict products liability theory. Furthermore, in light of the fact that Chrysler, as indicated, did not request a charge limiting the purposes for which the evidence could be used, we need not and do not reach the issue of whether in the circumstances here the jury should have been instructed that the evidence should not be considered in determining whether Chrysler was negligent (see Note, Products Liability and Evidence of Subsequent Repairs, 1972 Duke LJ 837, 851-852). This again emphasizes that it is not necessary to decide whether such evidence would have been admissible on a theory of design defect, for the case was not submitted to the jury on that theory.

Finally, as regards the dissenters’ damages discussion, the simple fact is that the defendants preseved for appeal no question other than that contained in their request for a charge on the reduction of plaintiff’s future earnings loss to present value. Nor, on this singular re viewable item, did the defendants offer expert or other proof, or ask the court to take judicial notice of any facts that could have entered into such a calculation, which of course would have to include the impact of the more than offsetting inflation which appears to have become a chronic affliction.

Nor, can we say as a matter of law that the very large reduction effected by the Appellate Division in the size of the general award of damages made for the catastrophic quadreplegic injuries to this 21-year-old plaintiff did not more than subsume any correction that reasonably could be urged. It goes without saying that that court, lacking clairvoyance, in evaluating a verdict intended to compensate for a projected long lifetime of pain, suffering, helplessness and all the other tangible and intangible losses that were sure to follow, faced an unusually difficult judgmental responsibility, for the fulfillment of which no less than a sophisticated elasticity will ever do. In no two cases are the quality and quantity of such damages identical. As has been pointed out by pragmatists and theorists who have wrestled with the problem of how damages in such cases may justly be arrived at, evaluation does not lend itself to neat mathematical calculation (see James, Damages in Accident Cases, 41 Cornell LQ 582, reprinted in Schreiber, Damages in Personal Injury and Wrongful Death Cases, Practicing Law Institute, New York). It follows that, if we are to essay anew the difficult and perhaps complicating venture of delineating more rigid guidelines for the evaluation of an always varying pattern of damages, we had better await a case in which we can reach the question (CPLR 5501, subd [a], par 3; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 115).

For all these reasons, the order of the Appellate Division should be affirmed.

Jasen, Jones and Meyer, JJ.

(dissenting). Reversal and new trial is required because (1) the matter having been submitted to the jury only on manufacturing defect and not on design defect, evidence of subsequent design change was irrelevant, (2) evidence of subsequent design change is so prejudicial that it should be admitted, even if admissible in strict liability cases, only when, because other proof is not available, its probative value outweighs its prejudicial effect; in the instant case other evidence was available, and (3) the Trial Judge erred in denying defendant’s request to charge that future lost earnings should be discounted to present value.

I

The theory upon which the action was submitted to the jury, as the majority concedes (at p 120), was of a defect in manufacture and assembly. Straining to sustain the admission of evidence of subsequent design change in a case not submitted to the jury on a design defect theory, the majority fails to recognize the essential difference between the two, a distinction re-emphasized only last year in Robinson v Reed-Prentice Div. of Package Mach. Co. (49 NY2d 471), and muddies not only the law of evidence but the rules governing product liability as well.

Strict products liability permits recovery by the plaintiff upon a showing that the product which caused the injury was defective when it was put on the market (Codling v Paglia, 32 NY2d 330, 342). As the law of products liability has developed in this State, a defect in a product may arise in one of three ways: a defect in construction, through mistake in manufacturing or assembly (Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Codling v Paglia, 32 NY2d 330, supra), a defect in design (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, supra; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Bolm v Triumph Corp., 33 NY2d 151), or failure to give adequate warning or instruction in the use of the product (Wolfgruber v Upjohn Co., 72 AD2d 59, affd 52 NY2d 768; Torrogrossa v Towmotor Co., 44 NY2d 709). Though this appeal properly involves only the first, the majority’s confusion of the first two requires that we differentiate defective manufacture from improper design.

Although sometimes difficult to delineate (see Barker v Lull Eng. Co., 20 Cal 3d 413; Wade, On the Nature of Strict Tort Liability for Products, 44 Miss LJ 825; see, also, Prosser, Law of Torts [4th ed], § 99), a real distinction exists, both in law and in fact, between manufacturing defects and design defects. Manufacturing defects, by definition, are “imperfections that inevitably occur in a typically small percentage of products of a given design as a result of the fallibility of the manufacturing process. A [defectively manufactured] product does not conform in some significant aspect to the intended design, nor does it conform to the great majority of products manufactured in accordance with that design.” (Henderson, Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Col L Rev 1531, 1543.) Stated differently, a defectively manufactured product is flawed because it is misconstructed without regard to whether the intended design of the manufacturer was safe or not. Such defects result from some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction. Common examples of manufacturing defects are the proverbial hairline fracture in the exploding bottle or the flawed piece of metal in the automobile steering column. (See Victorson v Bock Laundry Mach. Co., 37 NY2d 395, supra; Codling v Paglia, 32 NY2d 330, supra.)

In contrast, a design defect is one which “presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to [the] detailed plans and specifications” of the manufacturer (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479, supra.) Thus, unlike manufacturing defects, design defects involve products which are made in precise conformity with the manufacturer’s design but nevertheless result in injury to the user because the design itself was improper. Moreover, unlike manufacturing defect cases where the decisive issue is the existence of the defect without regard to the care exercised by the manufacturer, a defendant in a design defect case can avoid liability by demonstrating that he used that “degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended” (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 385, supra.) Indeed, it has been said that “the standards for imposing liability for such unreasonably dangerous design defects are *• * * general negligence principles”. (Bolm v Triumph Corp., 33 NY2d 151, 157-158, supra.) Instances of design defects are the motorcycle luggage rack situated such that it aggravates injuries to the driver when involved in a collision (Bolm v Triumph Corp., 33 NY2d 151, supra), or the printing press without hand guards to protect its user (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, supra).

In this case, though plaintiff’s complaint alleged, inter alia, that the ball joint was improperly “manufactured and assembled” and “defectively designed”, the evidence initially introduced advanced only the theory of defective manufacture and assembly. Ten days into the trial, however, plaintiff’s theory shifted to the concept that Chrysler’s ball joint was defectively designed. Only then was evidence of the subsequent design change introduced and were Doran and Burrill called to testify as to the addition of the plastic insert in the Chrysler ball joint. The matter was, however, submitted to the jury solely on the issue of manufacturing defect, apparently because the Trial Judge, having decided to strike Burrill’s design change testimony, concluded that there was insufficient evidence to present a jury question on the issue of design defect. Thus, the only issue before the jury was whether the particular ball joint in plaintiff’s automobile had been defectively manufactured because of faulty crimping or misassembly. On the question whether a mishap in the manufacturing process caused the ball joint in plaintiff’s automobile to be defective, evidence that four years later the design of the joint was changed was in no sense probative. The majority’s suggestions that such evidence, was bound to help the jury understand that Chrysler itself “eventually formed the opinion that the ball joints in Caprara’s car had a potential for movement when installed” (at p 125) and “added to the probability that it was this defect rather than other courses that produced the accident” (id.) are nonsequiturs in light of the uncontroverted evidence that there was no potential for movement when the car was on the ground, that the only “end play” in the ball joint reduced by the plastic insert was the “artificial end play” created when the automobile was lifted off the ground, and that the weight of the automobile when it is on the ground causes the ball joint to be pressed into its housing, locking it into place. The evidence of design change by Chrysler should have been excluded because it had no relevance to the only issue before the jury: whether there had been a manufacturing defect (see Hoenig, Products Liability: Views on Proposed Code of Evidence, NYLJ, Dec. 15,1980, atp 1, col 1; atp 3, col 1).

II

Even if we accept the majority’s view that the evidence had some probative effect, it should have been excluded because it was cumulative and its probative value did not substantially outweigh its prejudical effect.

Both briefs state that the Trial Judge admitted the post-accident design evidence on the basis of the holding in Barry v Manglass (55 AD2d 1, 7) that “the rule excluding evidence of postoccurrence repairs in negligence cases should not be applied to products liability cases.” The ruling was, thus, made on the law and not in the exercise of discretion. Accepting for purposes of argument that there may be cases in which such evidence should be admitted, not only under the usual exceptions to show feasibility, ownership or control if controverted, or to impeach, but also to establish defect in design, we conclude that it was reversible error to permit introduction of the evidence in the present case.

Barry v Manglass (supra) is distinguishable because it involved a recall letter sent under a statute (US Code, tit 15, § 1402, subd [a]) requiring a manufacturer to notify a purchaser of “any defect * * * which [the manufacturer] determines, in good faith, relates to motor vehicle safety” and which thus constituted a clear admission, albeit under force of the statute, of defect, while postoccurrence design change to the extent that it constitutes an admission at all is much less probative of defect. Moreover, both Barry and Ault v International Harvester Co. (13 Cal 3d 113), on which Barry heavily relies, proceed from the premise that the rationale for the exclusionary rule is deterrence of the manufacturer from effecting repairs. Since the manufacturer subject to strict products liability has other incentives for marketing a nondefective product, it is reasoned, it is not necessary to exclude evidence of subsequent repair or design change as an encouragement for him to make such repair or change.

While the deterrence rationale is one of the reasons usually given for exclusion, it is neither the sole nor should it be the primary reason. To reason as do Ault and Barry is to accord deterrence undue weight and to grossly underplay the prejudicial effect of the evidence. Neither history nor logic requires or warrants so doing.

The early cases emphasized lack of probativeness and the prejudice resulting from admission as the primary reasons for exclusion, and referred to deterrence only incidentally if at all. Thus, in Morse v Minneapolis & St. Louis Ry. Co. (30 Minn 465, 468-469), decided in 1883, the basis for the exclusion was stated as follows: “[S]uch acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light, of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so, and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence.”

The United States Supreme Court in Columbia R. R. Co. v Hawthorne (144 US 202, 207), after quoting the Morse statement, phrased the rule in the following language: “[T]he evidence is incompetent, because the taking of such precautions against the future is not be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant” and in Smyth v Upjohn Co. (529 F2d 803, 804), the Second Circuit Court of Appeals, concluding that New York State courts did not accept the Ault rule, stated that: “The rationale behind the doctrine is that the evidence of remedial action, being based on hindsight, does not tend to show that the defendant had failed to act with reasonable care at an earlier period of time. The evidence, on the other hand, could be highly prejudicial and might discourage a person from making repairs to remedy a potentially dangerous situation.” Without unduly expanding this opinion by quoting from other similar out-of-State case authorities, we note that the instant case is the first in which this court has departed from this basic rationale, and that in a carefully reasoned opinion by Justice Richard D. Simons, the Fourth Department, in Bolm v Triumph Corp. (71 AD2d 429), distinguished both Ault and Barry and refused to permit evidence of post-accident design change in a strict liability case.

Secondary authorities likewise fail to accord to deterrence an overriding role. Wigmore (Evidence [Chadbourn rev, 1979], vol 2, § 283, subd [4]) states the ground for exclusion as “that the supposed inference [of negligence or fault] from the act is not the plain and most probable one,” then notes that such theoretical relevance as the evidence has is overcome on policy grounds that the evidence “would be liable to overemphasis by the jury, and that it would discourage all owners, even those who had genuinely been careful, from improving the place or thing that had caused the injury” (at p 175). Except as part of the quotation from the Morse case, neither Richardson ([10th ed — Prince], §§ 168, 221) nor Fisch (New York Evidence, § 798) mentions deterrence. McCormick ([2d ed], at pp 666-669) notes that in most cases courts have not felt called upon to state the basis of the rule (at p 666, n 9). Though he writes that, with those that do, the predominant reason is the policy against discouraging the taking of safety measures rather than the lack of probative significance, he, nevertheless, concludes (atpp 668-669) that before admitting evidence of subsequent change for any purpose “the court should be satisfied that the issue on which it is offered is of substantial importance and is actually, and not merely formally in dispute, that the plaintiff cannot establish the fact to be inferred conveniently by other proof, and consequently that the need for the evidence outweighs the danger of its misuse” (emphasis supplied).

It is, of course, true that even the traditional exceptions to the subsequent repair rule in negligence cases involve the danger that the evidence will be misused by the jury, and that the law has in such cases relied upon jury instructions limiting the use to which the evidence can be put by the jury as a sufficient protection against misuse. That reliance has, however, been born of necessity by reason of the inability to prove an element of the cause of action, such as control, controverted by defendant, without the subsequent repair evidence. It recognizes the unfairness of permitting defendant to both deny such an element and object to evidence which strongly tends to prove that element, and leaves to defendant the choice between admitting the element (e.g., control) and thus excluding the evidence, or denying the element and thus opening the door to admission of subsequent repair or design. Such instructions have, moreover, been relied upon in areas of fault with which jurors, who in final analysis establish for each case what reasonable care means, are much more likely to be conversant than are they with respect to the technically sophisticated question of design or manufacturing defect (cf. Henderson, Manufacturer’s Liability For Defective Product Design, 56NCL Rev 625, 626). Accepting the somewhat dubious concept that such instructions can be understood and will be applied in such cases, we suggest that in strict product liability cases, where, as the majority points out, “it is not even essential to a prima facie strict products case that the defect be isolated” (at p 128) subsequent design change evidence, like the lure of the Lorelei’s siren song, will in almost all cases determine the result. Human nature being what it is, jurors who need only determine whether plaintiff has reasonably excluded other causes and whether the product was defective can hardly be expected to look beyond the admission which they will believe to be implicit in defendant’s having made a design change, the more particularly so when the field involved is a technical one with which the average juror has no familiarity except through the battle of experts presented before him. Thus, the very element of strict liability law on which the majority relies is the element which, in our view, according realistic significance to the probability of prejudice, requires exclusion of the evidence unless plaintiff satisfies the Trial Judge that despite real effort to uncover other evidence in proof of defect he has been unable to do so. Only in such a case can the need for the evidence justify exposing defendant to the danger of its prejudicial misuse.

To admit evidence of subsequent change on a less limited basis in strict liability cases generally is to make every manufacturer the insurer of the safety of his product. By the conclusion they reach, the majority, while verbalizing the concept that a manufacturer is not an insurer, in effect makes him just that. As recently as Robinson v Reed-Prentice Div of Package Mach. Co. (49 NY2d 471, 481 supra), we have refused to expand the scope of the manufacturer’s duty so far as to “be tantamount to imposing absolute liability on manufacturers for all product-related injuries,” yet the majority broadly declares (at p 124) that “Those who market products must stand behind them.” Such reasoning is not far from that of the Pennsylvania Supreme Court which in Azzarello v Black Bros. Co. (480 Pa 547, 553), while denying that it was imposing liability as an insurer, cast the supplier “in the role of a guarantor of his product’s safety”. Yet as Professor Wade correctly notes: “What is the distinction between an insurer and a guarantor?” The economics involved may ultimately justify imposing such a burden on the manufacturer in favor of the consumer, but if that is to be done it should be done by the Legislature not by the courts. The absolute rule adopted by the majority, admitting subsequent design evidence without requiring that its prejudicial effect be balanced against plaintiff’s ability to prove a case without such evidence cannot be logically justified.

Were the balancing rule applied to the present case reversal would be required, for the evidence of change was “cumulative at best” (Knight v Otis Elevator Co., 596 F2d 84, 91). There was other evidence available to plaintiff to prove the defect for there was evidence that Chrysler knew that more than eight years prior to the sale to plaintiff of the car in which he was injured, its leading competitor had changed its ball joint design to include a plastic insert. Nor does the cautionary instruction given obviate the error, for there being other evidence available there was no reason to subject Chrysler to the possibility of prejudice which admission of the evidence necessarily involved.

Ill

With respect to damages, Chrysler’s attorney requested an instruction “as contained in PJI 2:290 commencing at page 647.” Mistaken are the majority’s suggestions (at p 126) that defendant’s attorney should have asked for a charge concerning inflation (that being the function of plaintiff’s attorney, not defendant’s) and that it was necessary to ask the Trial Judge separately to notice judicially the facts that enter into the present value calculation, they being clearly spelled out in the charge requested, and the Trial Judge having in any event denied the request not for any such reason, but out of hand.

The charge referred to by Chrysler’s attorney relates to future earnings only, and the request was preceded by counsel’s statement that he assumed the court would “charge PJI 2:290 regarding loss of earnings.” Chrysler now argues that not only future lost earnings, but future medical expenses and future pain and suffering should have been discounted. As to the latter two issues, the error was not preserved. It was, however, preserved as to future earnings and since plaintiff had a life expectancy at the time of trial of 35 years, the amount awarded for future earnings, if discounted, could have been but a small fraction of the aggregate of annual earnings on an undiscounted basis over the full life expectancy.* Since the jury’s award was a lump sum $3,600,000, we should not assume that the reduction made by the Appellate Division necessarily compensates for the failure to give the charge requested.' Indeed, in our view, since defendant presses the failure to charge as requested as reversible error, we should reverse, rather than assume that the Appellate Division’s reduction removed any prejudice from the error (especially when, as here, the Appellate Division’s reduction is made without any indication of the method by which it is arrived at). By allowing such reduced verdicts to stand we permit the Appellate Division to function as the trier of fact in fixing damages notwithstanding that defendant is entitled to the jury’s verdict on that as well as all other factual issues, under proper instructions on the law. Moreover, we stultify the development of the law in relation to the items that are discountable (see note 10 above), the way in which the matter should be presented to the jury (Chiarello v Domenico Bus Serv., 542 F2d 883, supra; Lawless, Computation of Future Damages; A View From the Bench, 54 Georgetown LJ 1131), the effect of inflation (cf. Spadaccini v Dolan, 63 AD2d 110), what, if anything, the jury is to be told about income taxes in relation to discounted value (cf. Coleman v New York City Tr. Auth., 37 NY2d 137; Norfolk & Western Ry. Co. v Liepelt, 444 US 490, rehearing den 445 US 972; and see Encyclopedia New York Law, Damages, §§ 1031, 1142; 1 NY PJI, p 644), areas of New York’s law of damages in need of clarification if damage awards are to retain logical relationship to the items of injury compensated for.

It would serve little purpose in a dissent to expound at length on each of those points. Suffice it to say that it was reversible error for the Trial Judge not to have charged as requested and that even if there had been no error in the admission of evidence, the matter should be remanded for retrial on the question of damages.

Chief Judge Cooke and Judges Gabrielli and Wachtler concur with Judge Fuchsberg; Judges Jasen, Jones and Meyer dissent and vote to reverse in a separate opinion.

Order affirmed, with costs.

      . The affirmance was as to liability. On the issue of damages, the Appellate Division modified what was originally a verdict for $3,600,000 by ordering a new trial on that issue unless the plaintiff agreed to stipulate to reduce it to $2,-000,000. He so stipulated.

      .  Though the proof of alternate design was not introduced at the trial until Doran took the stand, it did not represent a new or surprising theory. The amended complaint and the bill of particulars spoke to a defective steering system which included a defective and improperly designed lower right ball joint. It therefore was not improper for the trial court to allow in the evidence in support of that theory, and the Appellate Division certainly was justified in upholding that ruling (see Di Carlo v Ford Motor Co., 65 AD2d 597; McCormick v State of New York, 51 AD2d 28, 31; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.27).

      . Though the dissenting opinion assumes that Chrysler never received any complaint of ball joint failure of this type, except for an equivocal answer by Doran as to his personal knowledge of any complaints within an unspecified “short period of time”, a search of the the record merely shows that no offer on this subject was ever made by either side.

      . These included General Motors, Ford, American Motors, Mack Truck, International Harvester, Mercedes-Benz and the Bendix Corporation. He also served the United States Government in a like capacity. Chrysler itself had engaged him in another suit brought against it.

      . A “defective product” has perhaps been most succinctly defined as one “not reasonably safe” (Wade, Strict Tort Liability of Manufacturers, 19 SW LJ 5, 18) or “unreasonably unsafe” (Department of Commerce Model Uniform Product Liability Act, 44 Fed Reg 62714-62715 [1979]).

      , Since this case was not submitted to the jury on a defective design theory, we have no occasion to treat with the balancing of benefits against risks involved in ascertaining whether a product manufactured as designed under the then existing state of the art is reasonably safe (see Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, supra; Barker v Lull Eng. Co., 20 Cal 3d 413; Restatement, Torts 2d, § 402A; Wade, On Product “Design Defects” and Their Actionability, 33 Vanderbilt L Rev 551, 572 et seq.; Wade, On the Nature of Strict Tort Liability for Products, 44 Miss LJ 825, 837). The dissenters’ dissertation on this subject is therefore largely besides the point.

      . The fact that plaintiff presented no evidence that Chrysler ever received a complaint of failure of the ball joint plaintiff claims to have been defectively designed in the 13 million automobiles using the joint manufactured between 1962 and 1972 supports the conclusion of the Trial Judge not to submit the issue to the jury. .

        . (See, e.g., Ortho Pharm. Corp. v Chapman, 388 NE2d 541, 561 [Ind]; Moldovan v Allis Chalmers Mfg. Co., 83 Mich App 373; La Monica v Outboard Mar. Corp., 48 Ohio App 2d 43; Hayson v Coleman Lantern Co., 89 Wn 2d 474. Generally, see, Costello and Weinberger, The Subsequent Repair Doctrine and Products Liability, 51 NYSBJ 463; Comment: 13 San Diego L Rev 208; Admissibility of Evidence of Subsequent Repairs or Other Remedial Measures in Product Liability Cases, Ann., 74 ALR3d 1001.)

      . The majority takes the position that subsequent change evidence is admissible in any product liability case even though based upon defect in manufacturing rather than design. We disagree and would exclude such evidence in. design defect cases, essentially for the reasons stated by Justice Simons in Bolm (supra).

      . (1 Weinstein’s Evidence, par 105 [05], at p 105-36; vol 2, par 407[02], at p 407-9; vol 2, par 407 [04], at p 407-23, n 26; Note, Evidence of Subsequent Repairs: Yesterday, Today And Tomorrow, 9 U Cal Davis L Rev 421, 428, 438, 440.)

      . Unfortunately so far as law review literature reveals, there is no empirical data establishing the extent to which admission of such evidence results in a verdict for plaintiff. It has been characterized as “extremely damaging” (Bauman v Volkswagenwerk AG., 621 F2d 230, 233; see, also, Werner v Upjohn Co., 628 F2d 848, 853).

      . (Wade, On Product “Design Defects” and Their Actionability, 33 Vanderbilt L Rev 551, 567, n 81.) As Professor Wade recognizes (ibid,., at p 570), “coherent analysis in design defect cases requires a balancing process. An absolute test for liability is not feasible unless one seeks to impose an insurer’s liability.”

      . The legislative trend is toward restriction rather than expansion of liability and exclusion rather than admission of subsequent repair evidence. See the Model Uniform Product Liability Act, proposed by the United States Department of Commerce (44 Fed Reg 62714 [Oct. 31, 1979]). That act prohibits use of subsequent repair or design change to prove defect (id., at p 62728), as have a number of State statutes (Twerski, Rebuilding the Citadel, The Legislative Assault on the Common Law, 15 Trial No. 11, at pp 55, 58). But what Professor Twerski decries is not that they exclude subsequent design change evidence but that they “go well beyond the narrow issue of subsequent design change and exclude a broad range of newly developed information from the litigation scene” (id.).

      . To say (at p 126) that there is no good reason to limit admission to evidence necessary to plaintiff’s case is simply to ignore entirely the prejudice inherent in such evidence. Even the Note, Evidence of Subsequent Repairs: Yesterday, Today And Tomorrow (9 U Cal Davis L Rev 421) cited by the majority, which argues for the discard of the exclusionary rule, recognizes (at p 440) that “the defendant is entitled to have such evidence excluded if irrelevant or if the trial court agrees that admission would be unfairly prejudicial to defendant.”

      . Evidence that General Motors used such an insert, though no more probative than the later Chrysler design change that incorporated an insert in the joint, is far less prejudicial because it involves no element of admission by Chrysler.

      . Future expenses, like future earnings, should be discounted (Wolfe v General Mills, 35 Misc 2d 996; Leasure, How to Prove Reduction to Present Worth, 21 Ohio St LJ 204, 205; 1 NY PJI, at p 640). Pain and suffering likewise should be discounted (Chiarello v Domenico Bus Serv., 542 F2d 883, 887; Leasure, op. cit., at p 207; and see, generally, Restatement, Torts 2d, § 913A).

      . Defendant calculates the figures, based on salary at time of injury of $150 per week increased for wage increases by 10% for each of the remaining 35 years, at $2,113,990 before taxes, and those earnings discounted on the basis of a 6% return compounded annually at $275,041.76.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    In the Matter of the Estate of Robert S. Wood, Deceased. Nathan M. Medwin, as Executor of Robert S. Wood, Deceased, Appellant; Frank H. Purzycki et al., Respondents.
    Argued January 14, 1981;
    decided February 17, 1981

      POINTS OF COUNSEL

      Francis Bergan for appellant.
    I. The executor did not offer proof of any personal transaction or communication with decedent in support of his case and, therefore, did not waive the protection of CPLR 4519; nor in any event was the purported personal delivery of the money to decedent the “same” transaction as the bank transactions. (Martin

      v Hiller, 142 NY 140; Matter of Anooshian, 13 AD2d 626; Friese v Baird, 36 AD2d 727; Matter of Sklaire v Eldridge, 12 AD 2d 386.) II. On the undisputed facts a constructive trust was imposed by law on respondents Purzycki, imposing a standard of honor, care and caution in its discharge which, on their own proof, they failed to meet. (Matter of Gordon v Bialystoeker Center & Bikur Cholim, 59 AD2d 522, 45 NY2d 692; Cowee v Cornell, 75 NY 91; Bernard v Gantz, 140 NY 249; Sharp v Kosmalski, 40 NY2d 119; Simonds v Simonds, 45 NY2d 233; Allen v La Vaud, 213 NY 322; Tebin v Moldock, 19 AD2d 275.) III. The factual conclusions of the court below are incredible as a matter of law. (Lazarus v Bowery Sav. Bank, 16 NY2d 793; Matter of Van Slooten v Wheeler, 140 NY 624; Matter of Gordon v Bialystoeker Center & Bikur Cholim, 45 NY2d 692; People v Schenkman, 46 NY2d 232; Matter of Lynn v Hults, 26 AD2d 570; Matter of McNally, 54 AD2d 1103; Matter of Kleinberg v Heller, 38 NY2d 836; Jarrett v Madifari, 67 AD2d 396; De Mayo v Yates Realty Corp., 35 AD2d 700; Noce v Kaufman, 2 NY2d 347.)

      Karl H. Schrade and John S. Bartlett, Jr., for Frank H. Purzycki and another, respondents.
    I. The executor opened the door to respondent’s testimony by offering part of the transaction relating to decedent’s bank account. (Holcomb v Holcomb, 95 NY 316; Ward v Kovacs, 55 AD2d 391.) II. The issues of fact resolved in favor of respondents Purzycki and against the executor should be affirmed.
   OPINION OF THE COURT

Jasen, J.

The issue presented on this appeal is whether an executor, by introducing evidence of the opening of bank accounts and withdrawals therefrom tending to show that property belonging to the estate of decedent was in the possession of respondents, “opened the door” and thereby waived the protection of CPLR 4519, the so-called “Dead Man’s Statute”, allowing respondents to introduce evidence of a personal transaction with the decedent in order to show a proper disposition of such property.

Petitioner Nathan M. Med win, executor of the last will and testament of Robert S. Wood, brought this proceeding seeking to discover property alleged to have been improperly withheld from the estate and seeking delivery of any such property to the estate. (SCPA 2103, 2104.) The property sought to be recovered was the proceeds of certain bank accounts amounting to approximately $15,000 held jointly in the names of decedent and respondents Purzycki. Five such accounts were held jointly with respondent Therese Purzycki and one with respondent Frank Purzycki.

In April, 1976, shortly before decedent’s death, respondents withdrew moneys from these accounts. Respondents in their answer admit that these withdrawals occurred and further admit that the funds withdrawn were exclusively the property of decedent. However, respondents steadfastly deny that they were in possession of this property at the time of decedent’s death and maintain that it has all been returned to the estate except for $402 which is admitted to have been retained by respondents.

At trial, petitioner Medwin produced documentary evidence primarily concerning the withdrawal of the funds by the Purzyckis and the conversion of the withdrawn funds into cash. The testimony of the executor himself was limited to a cursory explanation that a diligent search had failed to turn up the funds. This testimony was confirmed by the testimony of an associate of Mr. Medwin, who had also participated in the search. On the strength of this evidence,' petitioner rested.

Respondents Frank and Therese Purzycki then took the stand and testified that they had indeed made the withdrawals in issue, but contended that after having converted the funds to cash, they personally presented this rather large sum of money to decedent while he was in his sickbed. Petitioner objected to such testimony upon the ground that CPLR 4519, the so-called “Dead Man’s Statute”, barred its admission into evidence. He contended that such delivery to Mr. Wood was a “personal transaction” with the decedent to which the Purzyckis were statutorily incompetent to testify absent a waiver of the protection of the statute by the executor.

The Surrogate overruled each of petitioner’s objections to the competency of the Purzyckis to testify to such a personal transaction with the decedent. The court held that by introducing evidence of the establishment of the bank accounts and of the withdrawals of the funds from such accounts, petitioner waived the protection of CPLR 4519. The court found that the transfer of decedent’s money to and from the Purzyckis was a single transaction and held that once the executor introduced evidence of a part of that transaction, he could not depend upon the statute to silence respondents with respect to the remainder of the transaction in issue. Having determined that the Purzyckis’ testimony was admissible in evidence, the court weighed the evidence before it and concluded that respondents were not in possession of funds belonging to the estate. The Appellate Division affirmed, two Justices dissenting, the decree of the Surrogate’s Court insofar as it denied petitioner relief as against respondents Purzycki. There should be a reversal.

The rule of evidence popularly referred to as the Dead Man’s Statute has a long history in the State of New York. Its first ancestors appeared on our statute books in the middle of the 19th century (see L 1851, ch 479; Code of Pro, § 399) and it has been carried forward in one form or another since that time. The statute is widely considered to be the last vestige of the common-law rule which made all interested persons and parties incompetent to testify. After the general rule barring testimony from interested persons was abolished (L 1848, ch 379; Code of Pro, §§ 351, 352), a new rule was adopted to prevent the living from testifying to certain “personal transactions” with the dead. One of the main purposes of the rule was to protect the estate of the deceased from claims of the living who, through their own perjury, could make factual assertions which the decedent could not refute in court. While the utility and wisdom of the rule have been often questioned throughout its history (see, e.g., 2 Wigmore, Evidence [Chadbourn rev ed], §§ 578, 578a; McCormick, Evidence [2d ed], §65; Fisch, New York Evidence, § 302; Richardson, Evidence [10th ed — Prince], § 396) and the Legislature has often forcefully been urged to change or to modify the statute (see, e.g., Second Preliminary Report of the Advisory Committee on Practice and Procedure [1958], p 268), it, nonetheless, has been consistently reenacted by the Legislature and remains a part of the law of this State.

The Dead Man’s Statute is currently embodied in CPLR 4519, which states in pertinent part: “Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event * * * shall not be examined as a witness in his own behalf or interest * * * against the executor, administrator or survivor of a deceased person * * * concerning a personal transaction or communication between the witness and the deceased person * * * except where the executor * * * is examined in his own behalf, or the testimony of the * * * deceased person is given in evidence, concerning the same transaction or communication.” The statute prevents any person “interested in the event” from testifying to a “personal transaction” with the deceased unless the representative of the deceased has waived the protection of the statute by testifying himself or introducing the testimony of the decedent into evidence at trial.

In the case before us, it is uncontested that the Purzyckis are parties or persons “interested in the event” and that their testimony, insofar as it relates to their alleged personal delivery of the property in issue to the decedent, involves a “personal transaction” with the deceased. Hence, their testimony in the Surrogate’s Court would be rendered inadmissible by the statute unless petitioner has somehow waived its protection.

By the terms of the statute, the representative of a decedent’s estate waives the protection of the statute if he testifies in his own behalf concerning a personal transaction of his adversary with the deceased. Once having introduced testimony concerning that transaction into evidence, he cannot thereafter prevent his adversary from testifying to the details of the same transaction, for to do so would give the estate an unfair advantage not intended by the statute.

Also, the executor cannot avoid a waiver by eliciting testimony from an interested party on the personal transaction in issue. It was long ago settled that when the executor questions his adversary as to all or part of a personal transaction with the decedent, he has “opened the door” as to that transaction and otherwise incompetent testimony is admissible to fully explain the personal transaction in issue. (See, e.g., Cole v Sweet, 187 NY 488; Nay v Curley, 113 NY 575.) The purpose of this rule is to place the parties, insofar as is practical in light of the policy embodied in the statute, in relatively equivalent positions vis-a-vis the same transaction. This prevents the unfair use of the statute as a sword rather than a shield.

However, both of the above “exceptions” to the Dead Man’s Statute are limited in application to the “personal transaction” to which the executor testified or forced another interested party to testify. By introducing such tes- . timony, the executor does not “open the door” to any or all personal transactions with the decedent. Rather, the waiver of the statute is limited to the “personal transaction” in issue. (Martin v Hillen, 142 NY 140.)

Applying the law to the case before us, we conclude that petitioner did not “open the door” or waive the protection of CPLR 4519. On his direct case, the only evidence presented by petitioner was documentary evidence of certain banking transactions, the testimony of a banker with respect thereto, and his own testimony and that of an associate that a diligent search failed to reveal the whereabouts of certain property owned by the decedent. The executor did not testify or cause any other interested party to testify as to a personal transaction of the Purzyckis with the deceased. Thus, the executor did not “open the door” to testimony concerning the later personal delivery of the funds in issue to decedent and the testimony of the Purzyckis with respect to such a personal transaction was improperly admitted at trial.

It is argued by respondents that the withdrawal of the funds from the bank and the delivery of the same moneys to decedent are part of a single transaction and that, as a result, the executor “opened the door” by introducing evidence of part of that transaction. In response to this argument, it need only be noted that it is irrelevant to our inquiry whether or not the withdrawals proven by the executor are part ohthe same “transaction” as the incident which respondents wish^to prove. This is so because, as noted earlier, the executoKcan only “open the door” by testifying or forcing another to testifying to a personal transaction with the decedent. Where no such testimony regarding a personal transaction is offered or elicited, the protection of CPLR 4519 is not waived and the “door” is not“opened”.

Indeed, if respondents’ view of the law were accepted, the statute would be of little use to an executor and would fall far short of achieving its goal of protecting the estate. This is so because the executor, by showing that an individual has come into possession of estate property, would automatically “open the door” to testimony concerning personal transactions with the decedent which the decedent would, of course, be unable to refute. Such an interpretation would run counter to the clear purpose of the statute and will not be adopted by this court.

Nor can it be said that petitioner opened the door by cross-examining the Purzyckis as to their personal transactions with decedent. Such examination occurred long after the executor’s many objections to the competence of the Purzyckis to testify to the personal transaction with decedent had been overruled. Having failed to prevail on his objections, the executor must be allowed at least to question the credibility of the witnesses on the transaction which respondents put in issue.

In sum, in our opinion petitioner did not, in the presentation of his case, waive the protection of CPLR 4519. Hence, the testimony of respondents with regard to the personal delivery of funds to decedent, concerning as it does a personal transaction with the decedent, was improperly received into evidence over petitioner’s objections. Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Surrogate’s Court, Albany County, for a new trial at which such testimony should be excluded.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, with costs, and the matter remitted to the Surrogate’s Court, Albany County, for a new trial.

       The petition also sought discovery and return of certain property allegedly held by respondents Leroy and Elizabeth Chesebro. The Surrogate, holding that CPLR 4519 barred the Chesebros from testifying that Mr. Wood had made them a gift of such property, ordered a return of a significant portion of the property in issue to the estate. The Appellate Division modified the Surrogate’s decree by reversing so much thereof as granted petitioner Medwin relief against respondents Chesebro and remitted the matter to the Surrogate for further proceedings in which the Chesebros would be allowed to testify concerning this personal transaction with the deceased. On November 20, 1980, this court dismissed an appeal from so much of the order of the Appellate Division as reversed and remitted the proceeding involving the Chesebros to the Surrogate’s Court upon the ground that this portion of the Appellate Division order did not finally determine the proceeding within the meaning of the Constitution. Hence, the portion of this proceeding which relates to respondents Chesebro is not before.us on this appeal.


author: Meyer, J.

text:
    George C. Weimer, Jr., as Assignee of David Burner and another, Appellant, v Board of Education of Smithtown Central School District No. 1, et al., Respondents.
    Argued January 13, 1981;
    decided February 19, 1981

      POINTS OF COUNSEL

      Gary N. Weintraub for appellant.
    I. School districts may not expend taxpayers’ funds to underwrite legal fees for the defense of private interests. (Matter of Chapman v City of New York, 168 NY 80; Leo v Barnett, 48 AD2d 463, 41 NY2d 879; Matter of Singer, 153 Misc 755; Matter of Humphrey, 94 Misc 377; Pappas v Nyquist, 85 Misc 2d 114; Matter of Roosevelt Hosp. v New York State Labor Relations Bd., 27 NY2d 25; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46.) II. The failure to obtain a certification of good faith precludes payment of legal fees. (Matter of Board of Educ. v Arnbach, 81 Misc 2d 864.)

      Martin J. Crowley and Craig F. Meltzer for respondents.
    I. George C. Weimer, Jr., the appellant assignee, who is also the petitioner in the underlying action which is the foundation of assignors’ claim, has no standing to bring this appeal. II. Payment of school district funds for defense of administrators in proceedings arising out of the performance of duties or exercise of powers is expressly authorized pursuant to section 3811 of the Education Law. (Matter of Singer, 153 Misc 755; Pappas v Nyquist, 85 Misc 2d 114; Matter of Humphrey, 94 Misc 377; Matter of Board of Educ. v Ambach, 81 Misc 2d 864.) III. The payment of legal fees of administrators defending actions arising out of the performance of their duties or exercise of their powers may be authorized by resolution adopted by the board of education at a duly convened meeting.
   OPINION OF THE COURT

Meyer, J.

Assignment of a taxpayer’s action to one not shown to be himself a taxpayer is the transfer of a claim in contravention of public policy and, therefore, proscribed by subdivision 3 of section 13-101 of the General Obligations Law. Because the assignee, appellant at the Appellate Division and in our court, was, as a result, without standing to maintain the action, the appeal should be dismissed and the matter should be remitted to the Appellate Division with directions to dismiss the appeal to that court.

The present action grows out of an article 78 proceeding by George C. Weimer, Jr., against the board of education and two of its employees, Frank Lo Prestí and Joseph Barton, in which a third employee, I. David Bergrin, intervened as a defendant. In the earlier action Weimer charged that he had been improperly removed from the school district payroll through the adoption by the board of a reorganization plan which abolished his position as assistant superintendent for business affairs, and created in its place two new positions of administrator for operations and business manager; that though he had greater seniority than defendant Lo Prestí, who was also an assistant superintendent, he, Weimer, rather than Lo Prestí, had been removed; that his position and the two new positions were within the same tenure area and although he was entitled to one of them the board had appointed defendant Barton administrator for operations and proposed to appoint someone other than Weimer as business manager. Weimer’s petition asked reinstatement to his former position, or in the alternative, appointment to the other assistant superintendent position or to either the position as administrator for operations or as business manager. The petition having been dismissed by Special Term, Weimer appealed to the Appellate Division, which reversed, directed that he be offered either of the two positions last above mentioned and remitted the matter for determination of the back pay to which he was entitled. The judgment entered after the back pay determination is now pending appeal in this court.

In February, 1978, while the article 78 proceeding was pending undetermined, the present action was begun by David and Sandra Burner against the board of education and Lo Prestí, Barton and Bergrin, among others. The complaint alleged that at all relevant times “plaintiffs were and continue to be residents and taxpayers” of the school district. The gravamen of the action is that the board of education illegally expended funds and committed waste in authorizing the employment at district expense of attorneys to represent Lo Prestí, Barton and Bergrin in the earlier action. The board defended the present action on the ground that it had acted legally in employing attorneys for the three named employees and that the Burners were not the real parties in interest. The Burners having moved for a preliminary injunction and for summary judgment, Special Term denied both motions and granted defendants summary judgment dismissing the complaint. Its decision made no mention of the real party in interest defense, presumably because the complaint was, in any event, being dismissed.

An appeal was then filed to the Appellate Division by George C. Weimer, Jr., “as assignee of all the rights title and interest of David Burner and Sandra Burner.” The record does not contain the assignment instrument and the statement pursuant to CPLR 5531 (both at the Appellate Division and in this court) states only that appellant is “the assignee of the causes of action by the original plaintiffs, David Burner and Sandra Burner.” The Appellate Division affirmed, without reaching the question of standing, on the opinion at Special Term, one Judge dissenting. The dissenting Judge found standing on the part of the Burners in section 123-b of the State Finance Law and authority for them to assign their rights to Weimer in section 13-101 of the General Obligations Law. We hold that it is contrary to public policy for a taxpayer’s action to be assigned to one who is not shown by the record to have been a taxpayer at the relevant time and therefore dismiss the appeal and remit to the Appellate Division with directions to dismiss the appeal to that court.

The right to maintain a taxpayer’s action is governed by both judicial decision and legislative enactment (Wein v Comptroller of State of N. Y., 46 NY2d 394, 398-399). As we held in Wein, to the extent applicable a legislative enactment will control, but in matters not covered by a statute common-law principles govern. In the instant case, the result is the same whether considered as a common-law or a statutory matter.

The Burners’ complaint does not indicate whether they proceeded on statutory or common-law authority. The statutory avenues conceivably open to them are article 7-A of the State Finance Law, section 51 of the General Municipal Law and section 102 of the Civil Service Law. It is not necessary to decide whether any of these is broad enough to encompass the particular grievance the Burners allege, for the status allegations essential to their complaint can be assumed* * for purposes of this opinion. As for the common-law action, the tortuous route by which such actions, long in disfavor with our court, finally came to be recognized in Boryszewski v Brydges (37 NY2d 361) and by statute (L 1975, ch 827) is traced in Wein v Comptroller of State of N. Y. (46 NY2d 394) and Matter of Urban League of Rochester, N. Y. v County of Monroe (49 NY2d 551; see, also, Siegel, New York Practice, § 136, p 169) and need not be reiterated here. Suffice it to note that while, as the Urban League case exemplifies, not every grievance can be aired in a common-law citizen-taxpayer action, and while the kind of taxes paid that will qualify a citizen to bring a common-law action have been assumed rather than fully articulated, the one common thread running through the decisions is that only one who is in fact a taxpayer may maintain such a common-law action. Thus, whether a statutory or a common-law action be pursued, taxpayer status is a sine qua non.

Appellant Weimer argues that the action was commenced by taxpayers and that his motivation in obtaining assignment of the action and prosecuting the appeal is irrelevant. That a taxpayer’s action plaintiff has a personal, as well as a public benefit, motive does not disqualify him (Molloy v City of New Rochelle, 198 NY 402, 411, Del Balso Constr. Corp. v Gillespie, 225 App Div 42, affd 250 NY 584; Shewan & Sons v Mills, 211 App Div 687; Gage v City of New York, 110 App Div 403; 18 McQuillin, Municipal Corporations [3d ed rev], § 52.11), but a taxpayer who permits his status as such to be used by an unqualified person for the latter’s ulterior purpose does not act in good faith and will not be accorded standing (Nathan v O’Brien, 117 App Div 664; Hull v Ely, 2 Abb NC 440; Vadakin v Crilly, 18 Ohio Cir Ct 634, affd 73 Ohio St 380; contra Goshert v City of Seattle, 57 Wash 645; R. D. Lamar Inc. v Ray, 132 Fla 704; see McQuillin, loc.. cit., supra)..Moreover, if a taxpayer’s action plaintiff loses his status as such during the pendency of the action, the action abates (State ex rel. Allen v Board of Educ., 206 Okla 699; Baugh v Little, 140 Okla 206) unless another person qualified to bring the action is substituted as plaintiff and continues the action (Phillips v Brandt, 231 Minn 423; see 74 Am Jur 2d, Taxpayers’ Actions, § 54, at p 271). Intervention in such a proceeding is limited to one who was qualified to bring the action at the time it was begun (Coyne v City of Yonkers, 57 Misc 366; see Morris v City Council of Augusta, 204 Ga 26; Carney v City of Grinnell, Iowa, 53 F2d 44; 74 Am Jur 2d, Taxpayers’ Actions, § 55, at p 272) or who has standing not as a taxpayer but because he is directly and substantially affected by the issue being litigated (CPLR 1012; see Matter of Burke v Sugarman, 35 NY2d 39; Williams v Morgan, 111 US 684).

The explanation behind these rulings and our decision in the present case is to be found in the reason for granting standing to taxpayers, which is that failure to do so “would be in effect to erect an impenetrable barrier to any judicial scrutiny of” legislative or executive action (Boryszewski v Brydges, 37 NY2d 361, 364, supra; Matter of Burke v Sugarman, supra, at p 45; see Faden v Philadelphia Housing Auth., 424 Pa 273; 74 Am Jur 2d, Taxpayers’ Actions, § 1, at p 182) and the belief that “the taxpayer, as the ultimate bearer of the burdens” of the governmental agency involved should have a remedy against burdens unjustly imposed (Queens County Water Co. v Monroe, 83 App Div 105, 108). There is no “impenetrable barrier” when there are clearly many others than Weimer who meet the requirements qualifying them to challenge the board’s actions (see Wilt v Beal, 26 Pa Commw Ct 298). What prompted the earlier barrier to such actions in this court, moreover, was fear of the disruption of governmental functions that could ensue (Doolittle v Supervisors of Broome County, 18 NY 155, 162; Jaffe, Standing To Secure Judicial Review: Private Actions, 74 Harv L Rev 1265, 1291-1292; Note, 36 Albany L Rev 203, 213) and a reluctance to countenance “interference by one department of government with another” (Schieffelin v Komfort, 212 NY 520, 530). While the supposed interference has been shown to be more apparent than real (St. Clair v Yonkers Raceway, 13 NY2d 72, 80 [Fuld, J., dissenting]; see Davis, Standing: Taxpayers and Others, 35 U of Chicago L Rev 601, 634-635; Note, 36 Albany L Rev 203, 209), it took the excesses of the Tweed administration in New York City to bring about legislation opening the courts to review of municipal action (Ayers v Lawrence, 59 NY 192) and another hundred years before the Legislature and our court authorized a system of review on the State level (L 1975, ch 827; Boryszewski v Brydges, 37 NY2d 361, supra). Notably also none of the changes, legislative or judicial, have accorded standing to nontaxpayers, there being no perceived necessity for doing so. To permit a taxpayer to begin an action in which he in effect represents himself and all other taxpayers and then assign it to a nontaxpayer is contrary to the declared policy of both the Legislature and the courts and goes far beyond the purpose for which such actions have been allowed. As a matter of public policy, a taxpayer’s grievance does not exist apart from his status as a taxpayer and, therefore, may not be assigned except to another who has such status. In effect, what the Burners sought by their assignment was to give Weimer their status as well as their grievance. Status being personal and not assignable, the attempt to circumvent the status requirement by assigning the claim to Weimer was contrary to public policy. Weimer was, therefore, without standing to appeal.

For the foregoing reasons, the appeal should be dismissed with directions, as above indicated, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Appeal dismissed, with costs, and case remitted to the Appellate Division, Second Department, with directions to dismiss the appeal to that court.

      . Defendant Bergrin was thereafter appointed business manager and then intervened.

      . The State Finance Law only authorizes an action concerning “a wrongful expenditure * * * of state funds” (§123-b, subd 1; Wein v Comptroller of State of N. Y., 46 NY2d 394, 398, supra; Matter of Sullivan v Seibert, 70 AD2d 975). Education is a State function, but a school district expends both moneys received through State grant and moneys raised in the exercise of its own taxing powers. If the funds it expends are regarded as school district and not State funds, article 7-A of the State Finance Law is inapplicable. Whether section 51 of the General Municipal Law applies to school districts is, however, not entirely clear. Lewis v Board of Educ. (258 NY 117) recognized the hermaphroditic nature of school districts, but held that to the extent that a city board of education expended city funds it was subject to suit under section 51 of the General Municipal Law. That holding was, however, overruled in Schnepel v Board of Educ. (302 NY 94). It may be, however, that the enactment of section 66 of the General Construction Law, subdivision 2 of which classifies a school district as a municipal corporation, has brought school districts once again within section 51 of the General Municipal Law, however, notwithstanding Sehnepel. Since the Burners were entitled to proceed under either one or the other, we need not decide for purposes-of this case which covered their grievance.

      . Qualifications under the State Finance Law are residence in the State and past or present payment of State income or sales taxes (§ 123-a). Section 51 of the General Municipal Law limits the right it grants to persons or corporations “whose assessments shall amount to one thousand dollars, and who shall be liable to pay taxes on such assessment in the county, town, village or municipal corporation” and is thus limited to payment of real estate taxes (Food Mart Assoc. v City of New York, 64 Misc 2d 971, affd 36 AD2d 693) but does not require residence (Steele v Village of Glen Park, 193 NY 341). Section 102 of the Civil Service Law requires that plaintiff be “a citizen resident of the state, who is assessed for and is liable to pay, or within one year before, the commencement of the action has paid a tax therein”. The Burners’ allegations that they are residents and taxpayers qualifies them, therefore, under either of the two last-mentioned statutes in all respects except the $1,000 assessment requirement of section 51 of the General Municipal Law. For purposes of this opinion we assume the Burners’ assessment to have exceeded $1,000.

      . Thus, had Weimer’s earlier article 78 proceeding been brought by a taxpayer as an action to prevent waste, Weimer could intervene in it because of his direct interest in his position as assistant superintendent and in the assertion of his tenure rights. In the instant action, however, his interest in blocking payment of counsel fees is both indirect and insubstantial and would not support intervention by him, Moreover, though respondent’s brief challenged Weimer’s standing to bring the appeal on the ground that he had not alleged that he was an aggrieved resident taxpayer, Weimer’s reply brief failed to respond to that challenge, and nothing in the assignment papers or in his CPLR 5531 statement alleged that he had the required status.