Majority
p. 306Maria Fasching, as Administratrix, etc., of Julius Fasching, Deceased, Respondent, v. Joseph Campano and Filomeno Campano, Defendants, Impleaded with Frank Arthofer and The Gilbert Storage Co., Inc., Appellants. First Department, April 19, 1940.
p. 307
Arthur K. Wing of counsel [James G. Purdy with him on the brief; John H. Brogan, attorney], for the appellants.
William Pinkney Hamilton, Jr., of counsel [Wallace S. Fraser with him on the brief; George Naiman, attorney], for the respondent.
The weight of the evidence in this case indicates that the traffic lights were with the car driven by Arthofer and against the car driven by Campano. Under the circumstances we deem that the error of the trial court in receiving statements of Campano alleged to have been made after the accident to the effect that the lights were green warrants reversal. Such evidence was not part of the res gestee under the circumstances disclosed in the record.
The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.
Present — Martin, P. J., Glennon, Untermyer, Cohn and Callahan, JJ.
Judgment unanimously reversed and a new trial ordered, with costs to the appellants to abide the event.