Appellate Terms of the Supreme Court of New York, 1929

Salmon v. Sunday

Salmon v. Sunday
Appellate Terms of the Supreme Court of New York · Decided June 18, 1929
134 Misc. 475; 235 N.Y.S. 672; 1929 N.Y. Misc. LEXIS 1147

Counsel

James J. Mahoney, for the appellant., Gould & Gould, for the respondent.

Salmon v. Sunday

Opinion of the Court

Per Curiam.

It was error for the trial court to receive the unsworn testimony of three children in this case. (Michel v. Semer, 205 App. Div. 281.) The attempt by the court to affirm the witnesses did not cure the error. It having been determined that the children were incapable of understanding the nature of an oath, they were likewise incapable of affirmation.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event.

All concur; present, Bijur, Callahan and Peters, JJ.

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