Scherback v. Stern

246 A.D. 746

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1935
• Status: Published

Opinion

Action to recover for personal injuries and for medical expenses and loss of minor’s services. Judgment reversed on the law and a new trial granted, with costs to appellants to abide the event. The infant plaintiff, who was sworn after he had given an unsworn statement, did not seem to know how the accident happened. The verdict must have been based entirely upon the unsworn statement of the witness Joseph Wasson, who at the time of the trial was seven years of age, and five at the time of the "accident. Although no objection was made to the reception of Wasson’s statement, the judgment must be reversed and a new trial granted. (Stoppick v. Goldstein, 174 App. Div. 306; Ranofsky v. Frank, 208 id. 213.) If such statement be admitted without objection, its reception will not be deemed error if there be other proof in support of the determination; but a determination resting upon it alone may not stand. The dictum to the contrary in Croissant v. Doscher (244 App. Div. 736) is dis-affirmed. Lazansky, P. J., Carswell, Tompkins, Davis and Johnston, JJ., concur.