Opinion
April 28, 1952.
Action to recover damages for personal injuries sustained by plaintiff's intestate when struck by a .22 caliber rifle bullet. The action, against the vendors of the rifle and the ammunition, is based upon negligence and a violation of section 1896 of the Penal Law. William Fischbach died pending this appeal and Lucille Fischbach, as administratrix of his estate, has been substituted for him by stipulation of the parties. No claim is made that his death resulted from his alleged injuries. Prior to the commencement of this action, intestate had brought an action against the boy alleged to have fired the bullet and also against his parents. The complaint in that action was not verified and contained allegations made on information and belief. It was received in evidence in this action over the objection of plaintiff's counsel. At that time the intestate was a patient in a State hospital for mental diseases, was not personally present at the trial, and was, therefore, in no position to offer any explanation of the contents or preparation of the complaint. The jury rendered a verdict in favor of both defendants, and plaintiff appeals from the judgment entered thereon. Judgment reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. Under the circumstances, it was error to have admitted in evidence the unverified complaint, containing allegations made on information and belief, in the prior action against other defendants, arising out of the same incident. Adel, MacCrate and Schmidt, JJ., concur; Johnston, Acting P.J., and Wenzel, J., dissent and vote to affirm.