Opinion
April 24, 1929.
Appeal from the City Court of the City of New York, County of Bronx.
E.C. Sherwood, for the appellant.
James F. Mahan, for the respondent.
It was error to admit the testimony of plaintiff's mother as to the conversation with the alleged janitress. As the conversation took place four hours after the accident, it was obviously no part of the res gestae and was not binding upon defendant. It was, therefore, inadmissible. ( Sherman v. D., L. W.R.R. Co., 106 N.Y. 542; Anderson v. Rome, W. O.R.R. Co., 54 id. 334.) There being no evidence to substantiate the charge of negligence against defendant, the complaint must of necessity be dismissed.
Judgment is accordingly reversed, with costs, and complaint dismissed on the merits, with costs.
All concur; present, BIJUR, CALLAHAN and PETERS, JJ.