Tartakoff v. Holstein

Appellate Terms of the Supreme Court of New York

Tartakoff v. Holstein

134 Misc. 39, 234 N.Y.S. 398, 1929 N.Y. Misc. LEXIS 782

Appellate Terms of the Supreme Court of New York·Decided April 24, 1929·Published

Opinion

Per Curiam.

It was error to admit the testimony of plaintiff’s mother as to the conversation with the alleged janitress. As the conversation took place four hours after the accident, it was obviously no part of the res gestee and was not binding upon defendant. It was, therefore, inadmissible. (Sherman v. D., L. & W. R. R. Co., 106 N. Y. 542; Anderson v. Rome, W. & O. R. R. Co., 54 id. 334.) There being no evidence to substantiate the charge of negligence against defendant, the complaint must of necessity be dismissed.

Judgment is accordingly reversed, with costs, and complaint dismissed on the merits, with costs.

All concur; present, Bijur, Callahan and Peters, JJ.

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Per Curiam.

It was error to admit the testimony of plaintiff’s mother as to the conversation with the alleged janitress. As the conversation took place four hours after the accident, it was obviously no part of the res gestee and was not binding upon defendant. It was, therefore, inadmissible. (Sherman v. D., L. & W. R. R. Co., 106 N. Y. 542; Anderson v. Rome, W. & O. R. R. Co., 54 id. 334.) There being no evidence to substantiate the charge of negligence against defendant, the complaint must of necessity be dismissed.

Judgment is accordingly reversed, with costs, and complaint dismissed on the merits, with costs.

All concur; present, Bijur, Callahan and Peters, JJ.

Tartakoff v. Holstein, 134 Misc. 39, 234 N.Y.S. 398, 1929 N.Y. Misc. LEXIS 782 (N.Y. Ct. App. 1929).

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Opinion

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