Gavrilutz v. Savage — 166 A.D. 309

Majority

p. 309

Rebecca Gavrilutz, Respondent, v. Joseph K. Savage, Appellant.

First Department,

February 19, 1915.

Headnote

Evidence — admissibility of unsworn statement of infant — rule in criminal proceeding not applicable to civil actions.

In an action for personal injuries it is improper to receive the unsworn statement of a boy nine years of age, who was eight at the time of the accident. But where such evidence is received under direction of the court, without obj ection by either party, it must be deemed to have been accepted by consent and is not a ground for the reversal of a judgment.

p. 310

Section 392 of the Code of Criminal Procedure, providing for the reception in evidence of the unsworn statement of an infant in a criminal proceeding, has no application to the trial of civil actions.

Appeal by the defendant, Joseph K. Savage, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of April, 1914, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Albert E. Dacy, for the appellant.

Herbert C. Smyth, for the respondent.

The plaintiff has recovered a judgment, reasonable in amount, for injuries suffered by her in consequence of a fall induced by a defective staircase in the tenement house owned by defendant. The evidence justified the verdict and we find no legal error in the record requiring a reversal. Our attention is, however, called by defendant to an alleged error in the admission of evidence as to which it seems proper to say a word.

Among the witnesses called by the plaintiff was a boy nine years of age. The court examined him on the voir dire and made the following statement: “The Court: On inquiry of this boy, while he is intelligent for his years, he is nine now and was eight at the time of the happening of this accident, I conclude that it would be unwise to put him under the obligations of an oath, as I do not think that he has got a clear understanding. He has, from what he expresses, a verbal understanding, but that is not sufficient to satisfy my mind that he understands the full nature and obligation of an oath. I, therefore, direct that his statement be taken not under oath by the jury.”

No objection was made by defendant to the reception of the boy’s unsworn statement; he was examined and cross-examined, and no motion was made at any stage of the trial to strike his evidence out.

p. 311

It was clearly improper to receive the hoy’s unsworn evidence (G ehl v. Bachmann-Bechtel Brewing Co., 156 App. Div. 51 ; People v. O’Brien, 74 Hun, 264 ), and if it had been objected to, and the question had been presented by an exception, we should have felt constrained to reverse the judgment therefor. Since it was not objected to, however, we must treat the statement as having been received by consent. It may be noted that a different rule as to the reception of the unsworn statement of an infant in a criminal proceeding has been established by statute (Code Crim. Proc. § 392), but this has no bearing upon the rule applicable to the trial of civil causes.

The judgment and order should be affirmed, with costs.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment and order affirmed, with costs.

Cases cited

Gehl v. Bachmann-Bechtel Brewing Co. 156 App. Div. 51 N.Y. App. Div. 1913-03-28 p. 311