249 A.D. 830 | N.Y. App. Div. | 1937
Action to recover for personal injuries and for medical expenses and loss of minor’s services. Judgment of the City Court of Yonkers reversed on the law and the facts and a new trial ordered, with costs to appellants to abide the event. The verdict must have been based entirely upon the unsworn statement of the infant plaintiff, who, at the time of the trial, was seven years old, and at the time of the accident was five years of age. Although no objection was made to the reception of the infant’s statement, the judgment must be reversed and a new trial ordered. In our opinion, there was no other proof in the case in support of the determination. (Scherbach v. Stern, 246 App. Div. 746.) Lazansky, P. J., Carswell and Adel, JJ., concur; Hagarty and Davis, JJ., dissent and vote to affirm on the ground that there was sufficient proof of negligence supporting the statement of the infant in respect to the manner in which the accident occurred. (See Hart v. Hudson River Bridge Co., 80 N. Y. 622.)