185 A.D. 469 | N.Y. App. Div. | 1918
The judgment recovered by the plaintiff rests upon the testimony of two children, one, the plaintiff, who was about six years and eight months old at the time of the trial, and the other her playmate, then seven years and six months old.
The learned justice who presided made no such preliminary inquiry, but insisted on swearing the child unless defendant would consent to waive the oath. The rights of the defendant were, therefore, not protected by the ruling of the court on the witness’s competency, made after examination, to, in the words, of the Code, ascertain her capacity and the extent of her knowledge.
For this reason we think that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Jenks, P. J., Thomas, Rich and Jaycox, JJ., concurred.
Judgment and order reversed and new trial granted, costs to appellant to abide the event.