Opinion
November 15, 1948.
In an action to recover damages for the death of appellant's intestate, alleged to have been caused by the negligence of respondent, appellant appeals from a judgment in favor of respondent, entered on an order, made on trial before the court and a jury, dismissing appellant's complaint on motion of respondent, at the close of appellant's case. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. Appellant's intestate, while a patient at a hospital or sanitarium conducted by respondent, committed suicide. Appellant claimed that respondent was responsible for her intestate's death because, although aware of intestate's suicidal tendencies, respondent negligently left him unattended. During the course of the trial evidence was admitted, over objection by respondent, as to conversations with a Dr. Rolle, involving information given to him as to decedent's mental condition, and as to the circumstances surrounding decedent's death. A motion to strike this testimony from the record on the ground that the scope and extent of Dr. Rolle's authority to bind respondent had not been established, was denied. We do not, on this appeal, determine whether or not this evidence should have been admitted, or whether or not respondent's motion to strike it from the record should have been granted. The evidence, whether competent or not, is in the record, and we are not at liberty to disregard it in reviewing the judgment appealed from. ( Flora v. Carbean, 38 N.Y. 111, 113; Saranac Lake Placid R.R. Co. v. Arnold, 167 N.Y. 368, 371; Levy v. Louvre Realty Co., 222 N.Y. 14, 21.) In our opinion, the evidence adduced by appellant was sufficient to establish a prima facie case. (Cf. Martindale v. State of New York, 269 N.Y. 554; Noseworthy v. City of New York, 298 N.Y. 76.) Nolan, P.J., Johnston, Adel, Sneed and Wenzel, JJ., concur.