Ellwanger v. Whiteford

Appellate Division of the Supreme Court of New York

Ellwanger v. Whiteford

15 A.D.2d 898, 225 N.Y.S.2d 734, 1962 N.Y. App. Div. LEXIS 10862

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 20, 1962

StatusPublished

Cited by1 cases

This text of 15 A.D.2d 898 (Ellwanger v. Whiteford) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ellwanger v. Whiteford, 15 A.D.2d 898, 225 N.Y.S.2d 734, 1962 N.Y. App. Div. LEXIS 10862 (N.Y. Ct. App. 1962).

Pincite

Opinion

We find that there was no negligence on the part of any of the defendants. In any event the death of plaintiff’s intestate was not proximately caused by any of their acts. Even were we not to dismiss the complaint we would nonetheless be obliged to reverse the judgment and order a new trial. It was error to admit the hearsay testimony of the police officer concerning the substance of his conversation with the watchman who had died prior to the trial. The watchman’s declaration was not one made against interest so as to constitute an exception to the exclusionary hearsay rule. For it to be such an exception it [899]*899is essential that the watchman knew at the time that the declaration was against his proprietary or pecuniary interest (Kittredge v. Grannis, 244 N. Y. 168, 175; Richardson, Evidence [8th ed.], § 244). The statement here attributed to him does not, nor does the record, indicate such an awareness. Settle order on notice. Concur — Botein, P. J., Rabin, McNally, Stevens and Bergan, JJ.

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We find that there was no negligence on the part of any of the defendants. In any event the death of plaintiff’s intestate was not proximately caused by any of their acts. Even were we not to dismiss the complaint we would nonetheless be obliged to reverse the judgment and order a new trial. It was error to admit the hearsay testimony of the police officer concerning the substance of his conversation with the watchman who had died prior to the trial. The watchman’s declaration was not one made against interest so as to constitute an exception to the exclusionary hearsay rule. For it to be such an exception it [899]*899is essential that the watchman knew at the time that the declaration was against his proprietary or pecuniary interest (Kittredge v. Grannis, 244 N. Y. 168, 175; Richardson, Evidence [8th ed.], § 244). The statement here attributed to him does not, nor does the record, indicate such an awareness. Settle order on notice. Concur — Botein, P. J., Rabin, McNally, Stevens and Bergan, JJ.

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Bluebook (online)

15 A.D.2d 898, 225 N.Y.S.2d 734, 1962 N.Y. App. Div. LEXIS 10862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellwanger-v-whiteford-nyappdiv-1962.

Opinion

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