141 N.Y.S. 133 | N.Y. App. Div. | 1913
The main questions are Whether the act of one Bechdoll in assaulting the plaintiff’s wife is imputable to the defendant, the former’s employer, and whether it was error to allow the plaintiff’s son, aged seven at. the event and nine at the trial, to make a statement without oath or affirmation. The plaintiff tenanted a saloon and the defendant furnished him with.beer, and for securing the money advanced for the license the latter held an assignment of it by an instrument which, among other things, provides: “ I will surrender and deliver up to the said party of the second part upon demand the said liquor tax certificate and. any and every other liquor tax certificate hereafter issued to me for said premises, and all unexpired coupons thereon, and I hereby authorize and empower the said party of the second part to enter said premises and take away said liquor tax certificate and any and every other liquor tax certificate hereafter issued to me for said premises.”. The plaintiff was in default in a payment on account of the license, ánd after demand Bechdoll, with a marshal, attempted to take the. license, but the plaintiff’s wife grasped it, and in an attempt to take it from her she was injured, as the jury found. It is urged that, when the plaintiff applied to the defendant for the saloon, he was referred to Bechdoll as' his representative, and that the latter did concern himself with plaintiff’s induction to the place, and that later he collected the installments as they fell due for beer and for the license. Such authority did not clothe Bechdoll with authority to take the license from the plaintiff, as the acts done pursuant to it were in their nature quite different from those involved in demanding the license and, upon refusal to deliver, seizing it. The plaintiff must furnish evidence showing that Bechdoll had from the defendant general, special or apparent authority “to
The plaintiff’s son was nine years old at the time of the trial and seven at the time of the event. Although he had not been to Sunday school and answered that he knew nothing about G-od, he was accustomed to say his prayers at home and had been taught to tell the truth and was aware that if he did not do so on the stand he would be “put away,” as he said. He also stated that he did not know who would put him away or why that would happen to him, but he promised that he would tell the truth on the stand. Predicated upon such examination the oath was withheld, but his testimony was received in the form of a statement. The inquiry whether he knew anything about God was quite indefinite and abstract, and was not calculated to elicit anything informing even from a person of more mature understanding, embarrassed by the publicity of his position and by the unexpected inquiry. More simple conversation with the child might have elicited some evidence of the Divinity to whom his prayers were directed. For. the rest, he was sensitive to the fact that his failure to tell the truth exposed him to. punishment, and it is quite immaterial that he was unaware of the agencies that would be used to make such disposition of him. In any case, his incapacity to be sworn as a witness did not authorize the reception of his evidence without oath or
With reference to the evidence of Dr. Jameson, it may be said that, while it was proper for him to state whether the conditions and events assumed in the question were competent to produce the conditions found, he was not permitted to testify as to what might or might not occur, or what is “very apt ” to produce conditions. It is not necessary to ascertain to what extent he exceeded the limit of expert opinion,- but it is considered that there was some departure from the true rule, which should hot be repeated.
The judgment and order should be reversed and a new trial ordered, costs to abide the event.
Jenks P. J., Burr, Rich and Stapleton, JJ., concurred.
Judgment and order of the County Court of Richmond county reversed and new trial ordered, costs to abide the event.