Tartakoff v. Holstein

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 gestee 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.