
    Bernard Stoppick, an Infant, by Barnett Stoppick, His Guardian ad Litem, Respondent, v. David Goldstein and Hyman Shapiro, Doing Business under the Name of Goldstein & Shapiro, Appellants.
    Second Department,
    September 29, 1916.
    Evidence — admissibility of unsworn testimony of infant in civil cases — appeal — reversal of judgment based on unsworn testimony of infant.
    Section 393 of the Code of Criminal Procedure, providing that children under the age of twelve years may testify in special oases without taking an oath, does not apply to civil cases.
    Although section 850 of the Code of Civil Procedure provides for the preliminary examination of an infant to ascertain his capacity and the extent of his knowledge, this does not permit the court to cast off the safeguard of an oath.
    Where a recovery is based largely on the unsworn testimony of a child nine years of age the judgment should be reversed, although objection to such testimony was not taken at the.trial or urged upon the appeal.
    Appeal by the defendants, David Goldstein and another, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 4th day of April, 1916, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the same day, denying defendants’ motion for a new trial made upon the minutes.
    
      Francis H. J. Maxwell [Alfred E. Holmes with him on the brief], for the appellants.
    
      Joseph 8. Johnston [Arnon L. Squiers and Melchiore Livote with him on the brief], for the respondent.
   Per Curiam :

By the Code of Criminal Procedure, section 392 (as amd. by Laws of 1892, chap. 279), children actually or apparently under the age of twelve years may testify in special cases without taking an oath; but such evidence is not sufficient to convict, unless corroborated or supported. This, however, is only applicable to criminal cases. No such exception was known to the common law. (See Cent. Dig. “Witnesses,” §§ 97, 98.)

Although our Code of Civil Procedure (§ 850) provides for a preliminary examination of an infant to ascertain his capacity and the extent of his knowledge, this does not permit the court to cast off the safeguard of an oath, which the law has placed on testimony. The trial court should have ascertained whether this plaintiff, nine years old at the time of hearing, was of sufficient capacity to comprehend the obligation of an oath, and, if so, should have had him sworn. Unsworn testimony of a child is inadmissible in a civil case. (Neustadt v. New York City R. Co., 104 N. Y. Supp. 735; Gehl v. Bachmann-Bechtel Brewing Co., 156 App. Div. 51; Chamberlayne Evidence, § 3639.)

Although this objection was not taken below, or urged upon this appeal, we cannot ignore such error, or regard the silence of counsel as a waiver. Hence the recovery based so largely on this unsworn testimony cannot stand.

The judgment and order of the County Court of Kings county is, therefore, reversed and a new trial ordered, costs to abide the event.

Stapleton, Mills, Rich and Putnam, JJ., concurred.

Judgment and order of the County Court of Kings county reversed, and new trial ordered, costs to abide the event.  