
    Shirley Salmon, an Infant, by Louis Salmon, Her Guardian ad Litem, Respondent, v. Theophyl Sunday, Appellant. Ignatz Lazowsky, Defendant.
    Supreme Court, Appellate Term, First Department,
    June 18, 1929.
    
      James J. Mahoney, for the appellant.
    
      Gould & Gould, for the respondent.
   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.  