269 A.D. 997 | N.Y. App. Div. | 1945
Action to recover damages for the death of plaintiff’s intestate caused by collision with appellant’s taxicab. Judgment, entered on the verdict of a jury in favor of plaintiff, reversed on the law, and a new trial granted, costs to abide the event. Inasmuch as the evidence of alleged negligent operation, and causal connection thereof with the accident, is meager, errors in rulings cannot be disregarded. It was not competently proved that the witness Hines was out of the State, and hence no basis was laid for ruling upon whether or not Ms testimony in the Magistrate’s Court could be admitted under section 348 of the Civil Practice Act. However, had such fact been competently proved, it appears that the testimony would not be admissible because the appellant was not a party to the other proceeding and did not have the right and opportunity to cross-examine the witness. Close, P. J., Hagarty, Carswell, Adel and Lewis, JJ., concur.