Arico v. New York Central Railroad

Judgment and order reversed on the law and a new trial granted, costs to abide the event. The admission of the evidence of the six and one-half year old boy, Rinaldi, without his being required to take the oath as a witness, constituted prejudicial error. (Gehl v. Bachmann-Bechtel Brewing Co., 156 App. Div. 51.) There was no other evidence to support the plaintiff’s theory of how the accident happened. Even if there were, we could not say that the jury were uninfluenced by the incompetent testimony. It is difficult to discover any theory upon which the plaintiff may recover, but as further proof may be produced on another trial, in reversing the judgment and order we grant a new trial. Lazansky, P. J., Young, Carswell, Scudder and Davis, JJ., concur.