
    August F. Beyer, Respondent, v. Gabriel Isaacs and Others, Composing the Firm of Isaacs & Levy, Appellants.
    
      Negligence — collision between defendants’ truck and plaintiff’s wagon — answer of the defendants' driver to the plaintiff’s assertion that he (the driver) was to blame — it is not part of the res gestee or competent as an admission — when its admission „ does not require the reversal of a judgment.
    
    Upon the trial of an action to recover damages sustained by the plaintiff in consequence of a collision between a wagon owned by the plaintiff and a truck owned by the defendants, evidence given by the plaintiff’s driver to the effect that after the collision he told the defendants’ driver that the latter was to blame for the collision and that the defendants’ driver replied, “To hell with you,” is not competent as part of the res gestas or as a declaration or admission of negligence binding upon the defendants. i
    The admission of such evidence does not, however, warrant the reversal of a judgment- in favor of the plaintiff where it appears that the objectionable part of such evidence was not responsive to the question which elicited it; that no objection was taken to the question until after it had been answered in part, and that after the entire answer had been received no motion was made that any part thereof be stricken out or that the jury be requested to disregard it, and also that similar evidence had been previously given without objection and that the defendants’ counsel, on his subsequent cross-examination of the plaintiff’s driver, caused him to repeat the objectionable testimony.
    Appeal by the defendants, Gabriel Isaacs and others, composing the firm of Isaacs & Levy, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of February, 1904, upon the verdict of a jury for $175, and also from an order entered in said clerk’s office on the 2d day of March, 1904, denying the defendants’ motion for a new trial made upon the minutes.
    
      Meier Steinbrienk, for the appellants.
    
      Charles M. Stafford, for the respondent.
   Hirschberg, P. J.:

The evidence is sufficient to justify a finding that while the plaintiff’s horse and wagon, in charge of the plaintiff’s driver, were at the side of the curb in Sackett street, Brooklyn, the defendants’ servant negligently drove their truck and team against the plaintiff’s wagon, and occasioned the damage complained of. The case contains no certificate that all the evidence is returned. The point which has been chiefly urged by the appellants on the appeal is that the learned trial court erred in permitting the plaintiff’s driver to testify that after the collision he told the defendants’ driver that he, the defendants’ driver, was to blame for it,, to which the latter replied, To hell with you.” It is urged that the conversation between the drivers after the accident was no part of the res gestes under .the rule laid down in Butler v. M. R. Co. (143 N. Y. 417), and that its admission accordingly constituted reversible error. . It is further urged that the effect of the evidence was to prejudice the defendants and necessarily to in jure their cause in the estimation of the jury.

It may be conceded that the evidence was not competent as a part of the act complained of or as a declaration or admission of negligence binding the defendants. (Burns v. Borden's Condensed Milk Co., 93 App. Div. 566.) I do not think, however, that the admission of the evidence warrants a reversal of the judgment. The objectionable part of the answer was not called for by the question which elicited it; no objection was taken to the question until it had been answered in part at least; after the entire answer was received no motion was made to strike out the whole or any part of it, and no request was made for instructions to the jury that they disregard it. In such circumstances it has been often held that the remedy by appeal is unavailing. (Platner v. Platner, 78 N. Y. 90, 102; Pontius v. People, 82 id. 339, 347 ; Turner v. City of Newburgh, 109 id. 301, 310.) Moreover, a similar conversation had been previously narrated by the witness without • any objection on the part of the defendants, the conversation then appearing to have taken place, it is true, just before the: collision ; but it cannot be assumed that the defendants were prejudiced in any degree by its mere repetition, especially in view of the fact that the defendants’ counsel on subsequent cross-examination of. the witness caused him to detail the conversation in full, with all its objectionable features, twice again.

No other point presented seems to require discussion. The charge was fair, and the verdict is amply supported by the proof.

The judgment and order should be affirmed.

Woodward, Jenks, Rich and Miller, JJ.>, concurred.

Judgment and order of the County Court of Kings county affirmed, with costs.  