
    Abraham Rappaport, an Infant, Etc., Respondent, v. The New York City Railway Company, Appellant.
    New trial — Grounds — Rulings at trial — Reception of evidence.
    Appeal by the defendant from an order entered in the Municipal Court of the city of New York, seventh district, borough of Manhattan, granting a motion to set aside a verdict, rendered in favor of the defendant after a trial before the court and a jury.
    William E. Weaver, for appellant.
    Frank Herwig, for respondent.
   Clinch, J.

The action was to recover damages resulting from an accident alleged t¿ have been caused by defendant’s negligence. The order setting aside the verdict specifically states that this is done “ on the ground that, in the course of the trial, evidence was erroneously received and admitted over the objection and exception on the part of the plaintiff” Defendant’s witness Stack had been permitted to testify without objection that he was familiar with the rules of the New York City ¡Railway Company with reference to the motorman and conductor making a report of accidents or being required to make one. He was then asked: “Are you familiar with the rules of the New York City ¡Railway Company with reference to the motorman and conductor making a report of accidents, or being required to make one ? ”

He.answered without objection': “Yes, sir.”

He was then asked: “ Q. Are they required to make one? A. Yes, sir, they are printed in the rule book. [Objected to as not the best evidence.] The Court: Do you pass the question ? Defendant’s counsel: I do. The Court: You do so at your peril. [Question allowed. Plaintiff’s counsel excepts.] Q. What are the requirements? A. They require that the conductor must make a report in writing about their accident and to drop it in the accident box, and in case the office happens to be closed for the day, to come up the following day and report it. Q. You say there was no report on your records of this accident ? A. Yes, sir.”

There was no objection or exception to the last two questions and the exception above noted, which is the only one on the entire record and upon which the court granted the motion to set aside the verdict, goes only to that part of the answer “ they are printed in the rule book.” It is difficult to understand the extraordinary action of the court in setting aside the verdict of the jury in favor of the defendant upon this single exception, especially in view of the testimony admitted without objection both before and after. It is hard to see how the admission of all this testimony, had it been objected to, could have prejudiced the plaintiff’s case, inasmuch as the jury by their verdict showed that they did not believe he had sustained the burden of proof incumbent upon him.

The order should he reversed, with costs to appellant, and the verdict reinstated.

Gildebsleeve and Davis, JJ., concur.

Order reversed, with costs to appellant, and verdict reinstated.  