
    Ray Weinstein, Respondent, v. The Interurban Street Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Carriers — Carriage of passengers — Liability for personal injuries to passengers — Actions by passengers: Admissibility of evidence; Instructions.
    In an action against a street railway company by a passenger to recover for personal injuries sustained in alighting from its car, where the defendant called its accident cleric, who testified lie could find no record of the accident, and defendant’s counsel then placed in his hands, to refresh his memory as to a date, a written requisition of defendant’s claim agent for information, whereupon plaintiff’s counsel offered it in evidence and it was received over defendant’s objection and exception, and the judge charged the jury that they might say from the complaint and the surrounding circumstances whether the statements in the requisition were front information derived from plaintiff or from the conductor or motorman, held, that the paper was improperly received; that the state' ments in it, even if made by defendant’s employees, would not be binding upon it as admissions and were not part of the res gestee and that, in connection with the charge, the admission of the paper was error for which the judgment against the defendant should be reversed.
    Dayton, J., dissents.
    Appeal by the defendant from a judgment of the Oity Court of the city of New York, entered in favor of the plaintiff on the verdict of a jury, and also from an order denying defendant’s motion for a" new trial.
    Henry A. Robinson (Bayard H. Ames, of counsel), for appellant.
    M. P. O’Connor (J. Brownson Ker, of counsel), for respondent.
   Gildersleeve, J.

This is the usual action to recover damages for injuries alleged to have been sustained through the careless operation of one of defendant’s cars upon which the plaintiff was a passenger. The jury in the court below rendered a verdict in favor of plaintiff; and, from the judgment entered thereon, and the order denying defendant’s motion for a new trial, defendant appeals. The principal act of negligence charged by the plaintiff was the starting of the car while the plaintiff was in the act of alighting therefrom and before she had been given a reasonable opportunity to get safely to the street. It appears that the car in question was being operated upon the Avenue 0 division of the defendant. The alleged accident occurred on Hovember 17, 19j)3, at which time one Avery Sickles was the accident clerk in the employ of defendant. Having been called as a witness for defendant, he stated that he had charge of the records of the company which contained all reports from all conductors and motormen who had accidents on cars, and that he was unable to find any record of any accident whatever occurring to plaintiff, or any one else, at the time and place alleged in the complaint. To refresh the witness’ memory as to a date, a written requisition of the claim agent to the superintendent of the Avenue 0 division, for information in regard to the alleged accident in question, was placed by defendant’s counsel in the hands of the witness; whereupon plaintiff’s counsel offered said requisition in evidence. .Defendant’s counsel objected, upon the ground that it was incompetent, irrelevant and immaterial. The court overruled the objection, to which ruling an exception was duly taken, and the paper was admitted in evidence and marked' “ Plaintiff’s Exhibit A.” The said paper bears date of December 28, 1903, and reads in substance as follows: “ Metropolitan Street Railroad Company. To the Superintendent of the Avenue C division. Dear sir: I am advised that an accident has occurred on Hov. 17, 1903, as follows: Mrs. Weinstein; Location Bowery and Prince; car Ho. 7; about 6 p. m.; getting off, sudden start, conductor rang bell too quickly. Please forward report and oblige W. A. Dibbs, claim agent.” The judge below in his charge to the jury directed attention to this exhibit and said: You have a right to say from the complaint in this action and from all the surrounding circumstances whether that was a statement which came to the defendant by reason of information derived from the plaintiff or by reason of information received from the conductor or motorman of the car. The defendant is not absolutely. bound, so far as the manner in which this accident occurred, by this statement in writing; but you have a right to adduce whatever just inferences you can from the evidence in consideration, taking into consideration all the facts in the case at the time.” If any admission of fact contained in the requisition is to be considered as a declaration of some employee of defendant, it would not be binding on defendant. Subsequently to the happening of the accident, the employees of defendant were without authority to make declarations that might constitute admissions tending to establish defendant’s liability. Such declarations cannot be said to be res gestee, and would not be binding on defendant. Kay v. Metropolitan St. R. Co., 163 N. Y. 447; Goetz v. Metropolitan St. R. Co., 54 App. Div. 365. Moreover it appears on the face of the requisition (Exhibit A) that the declaration, if one, “getting off, sudden start, conductor rang bell too quickly,” was hearsay. The exhibit in question, for the reasons above stated, was improperly received in evidence. It was clearly of a nature calculated to prejudice the jury against defendant, especially in view of the portion of the charge to the jury above quoted, and its admission constitutes an error that demands a reversal of the judgment.

Judgment reversed 'and new trial granted, with costs to appellant to abide the event.

Blanchabd, J., concurs.

Dayton, J. (dissenting).

I do not concur in the opinion of my associates. At the time of the accident, Sickles, called by the defendant, was the accident clerk of the Avenue 0 division of the Interurban Street Bailway Company. He testified on direct examination as follows: “ I had the driver and conductor up on the case and inquired of all who passed at that time * * *. I was accident clerk there at the time that requisition was put in to see if there was any accident happened at that time * * *. What first called my attention to an accident happening there was that I received a blank when I was down there, asking if any accident had happened; if the «inductor or driver had made any report on the case * * *. I cannot remember the date of the requisition now. Q. Do you know how the authorities of your company knew it was car Ho. 7 (when) they directed youij attention to investigate ? A. I do not know about that, as 3\ bad all I could do to attend to my business. Q. Will that paper refresh your recollection as to the- date when you _ looked up the accident. A. Thai refreshes my recollection as to the time when it was brought to my attention. The date was Dec. 28, 1903. I have signed that. It is my signature.” Upon the offer of plaintiff’s attorney, under defendant’s objection and exception, the paper was marked in evidence and read to the jury. Eeferring to said exhibit the court charged the jury as follows: “ Subsequent to the receipt of that complaint and on the 28th day of December, six days after the receipt of the complaint, this requisition is dated and sent to the superintendent of the Avenue G division, for information as to an accident to ‘E. Weinstein j ’ and it states in there, ‘ Getting off; sudden starting, conductor rang bell too quick.’ You have a right to say from the complaint in this action and from all the surrounding circumstances whether that was a statement which came to the defendant by reason of information received from the conductor or motorman of the car. The defendant is not absolutely bound, so far as the manner in which the accident occurred, by this statement in writing; but you have a right to adduce whatever just inferences you can from the evidence in consideration, taking into consideration all the facts in the case at the time.” This exhibit was an official document signed by its claim agent giving the date of the accident, the name of the plaintiff, the location and time of the accident and the number of the car and containing the words referred to in the charge by the judge. Sickles’ report thereon is, “ Please note attached statement of driver and conductor,” which statement was not produced. The testimony of the driver and conductor is negative; neither one of them denied the occurrence of the accident. Plaintiff’s testimony is positive and substantially uncontradicted, so that Exhibit A might well have been disregarded by the jury. I think, however, that this official document, made by the servants and agents of the defendant, was properly received in evidence. In White v. Miller, 71 N. Y. 135, the court says: “ The general rule is, that what one person says, out of court, is not admissible to charge or bind another. The exception is in cases of agency; and in cases of agency, the declarations of the agent are not competent to charge the principal, upon proof merely that the relation of principal and agent existed when the declarations were made. It must further appear that the agent, at the time the declarations were made, was engaged in executing the authority conferred upon him, and that the declarations related to and were connected with the business then depending, so that they constituted a part of the res gestee.” Were claim agent Dibbs and accident clerk Sickles engaged in anything else than in executing the authority conferred upon them? Did the declarations they made relate to the busines then depending? Both questions must be answered in the affirmative; and, as these declarations relate to this controversy, they constitute a part of the res gestee. To the suggestion that these declarations were hearsay, I submit that they might have come from the driver and conductor. The complaint does not contain them and the defendant did not attempt to enlighten the court or jury on the subject. The cases cited in opposition to these views are Kay v. Metropolitan St. R. Co., 163 N. Y. 447, where the conductor denied on cross-examination that he had made certain statements after the accident to a third party. Said third party was called and gave the statement. Held error on the ground that plaintiff’s attorney could not, on cross-examination, lay the foundation for impeaching the witness on matters not brought out on cross-examination. Also Goetz v. Metropolitan St. R. Co., 54 App. Div. 365, where a witness had testified that defendant’s officers had said that defendant was in control of certain apparatus. Held error, as it was not shown that at the time the declaration was made the agent was engaged in executing the authority conferred upon him. It seems to me that these authorities do not meet the facts here nor the rule laid down in Rogers v. New York & Brooklyn Bridge, 11 App. Div. 141, where the court says: “ Having required this report, and it having been made and brought to their attention, they are chargeable with knowledge of its contents, and it becomes evidence against them for any legal purpose as an admission on their part of what it contains, and it is also admissible as an admission of the agent acting within the scope of his authority.” Also Reed v. McCord, 160 N. Y. 34, “ In a civil action the admissions of a party of any fact material to the issue are always competent evidence against him, wherever, whenever and to whomsoever made.” The judgment should be affirmed, with costs.

Judgment reversed and new trial granted, with costs to appellant to abide event.  