Majority
p. 760Theresa Sheedy, as Administratrix, etc., of James Sheedy, Deceased, Respondent, v. The City of New York, Appellant.
Judgment and order reversed on the. law, and new trial granted, costs to abide the event, on the ground that it was error for the trial court to receive the testimony of the witnesses O’Toole and Abruzzo in regard to the alleged conversation with some person in the corporation counsel’s office, unknown to them, and whose voice they did not recognize or identify. Kelly, Manning, Kelby and Young, JJ., concur; Blaekmar, P. J., dissents upon the ground that all that was necessary for the plaintiff to prove in order to establish a waiver was. that the conversation over the telephone was with the corporation counsel’s office, without identifying the
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particular person with whom the witnesses talked. The evidence supports a finding that the conversation was with that office. Therefore, whether the attendance of the witness before the comptroller was waived was a question of fact for the jury.