
    NELSON POWERS, Respondent, v. THE VILLAGE OF WEST TROY, Appellant.
    
      Evidence — what declarations are admissible as apa/rt of the res gestae.
    
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The plaintiff alleged that a cutter in which he was riding through the streets of West Troy was overturned by reason of a defect in the street, and that he was thrown out and injured; for the damages thus sustained he sued and recovered a verdict at the circuit.
    On the trial a witness swore that immediately after the accident, and just as they got back into the cutter, plaintiff said that he was badly hurt. To this evidence defendant’s counsel objected. Ilis objection was overruled and he excepted.
    The court at General Term said: “We think the evidence was properly admitted. It was in no sense a narrative of a past transaction, but was a statement of the present condition of the plaintiff, made at a time when it was fairly to be inferred that such condition was the effect of the overturn, and without opportunity for reflection or concoction.
    Such declarations are always admissible as part of the res gestee. (Whar. Ev., §§ 262, 263; Brownell v. Pac. R. R. Co., 47 Mo., 240; Abb. Trial Ev., 587.)”
    
      John PL. Gleason and R. W. Peckham, for the appellant.
    
      A. D. Lyon and Matthew Hale, for the respondent.
   Opinion by

Rumsey, J.

Learned, P. J., concurred; Osborn, J., taking no part.

Judgment affirmed, with costs.  