Schuck v. Rao Electrical Equipment Co.

21 Misc. 2d 290, 193 N.Y.S.2d 906, 1959 N.Y. Misc. LEXIS 2549

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 25, 1959
• Status: Published

Opinion

Per Curiam.

The answers the infant (seven years of age at time of accident and nine years of age at time of trial) gave on direct and cross-examination constituted evidence and went beyond the mere making of a statement, as the trial court believed. Not having been sworn because of tender age, his testimony was not admissible and constituted reversible error. Nor can it be said upon the record presented that it is probable that the jury gave it no weight, there being no adequate specific instruction to the jury on this question (see Clarke v. Steeplechase Amusement Co., 9 Misc 2d 342 and cases cited therein).

The judgment should be reversed and new trial ordered, with $30 costs to appellants to abide the event.

Concur — Steuer, J. P., Aurelio and Tilzer, JJ.

Judgment reversed, etc.