Opinion
November 25, 1959
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, LESTER LAZARUS, J.
George J. Conway and E. Nicholas Pinto for appellants.
Edward A. Bailey and Anthony J. Randolph for respondents.
The answers the infant (seven years of age at time of accident and nine years of age at time of trial) gave on direct and cross-examination constituted evidence and went beyond the mere making of a statement, as the trial court believed. Not having been sworn because of tender age, his testimony was not admissible and constituted reversible error. Nor can it be said upon the record presented that it is probable that the jury gave it no weight, there being no adequate specific instruction to the jury on this question (see Clarke v. Steeplechase Amusement Co., 9 Misc.2d 342 and cases cited therein).
The judgment should be reversed and new trial ordered, with $30 costs to appellants to abide the event.
Concur — STEUER, J.P., AURELIO and TILZER, JJ.
Judgment reversed, etc.