Majority
p. 468Thomas Doyle, Appellant, v. The Rector, Wardens and Vestrymen of Trinity Church Corporation in the City of New York, Respondents. Court of Appeals, January 28, 1890.
Headnote
Reversing 44 Hun, 628 , Mem.Evidence. Hearsay.—On the trial of an action for injuries to a well caused by the explosion of a torpedo, a witness cannot be permitted to testify that some one told him that one of the torpedoes was exploded just. below the surface of the rock, and so injured the well.
Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of the defendants,, entered upon a verdict directed by the court.
L. A. Fuller, for appellant.
p. 469
S. P. Wash, for respondents.
It was error to permit Mr. Cruger to testify that some one told him that one of the torpedoes was exploded just below the surface of the rock and so injured the well. The fact, if relevant, as it was deemed to be to the question whether exploding the torpedo at this point was a negligent act, should have been proved by competent evidence, or not at all. It was error to rule as a question of law that Foth acted, and was actually or apparently authorized to act, as the agent of Button in employing Seagul to explode the torpedoes ; which question should have been submitted to the jury as one of fact. For these errors, the judgment should be reversed and a new trial granted, with costs to abide the event.
All concur.