Judgment unanimously reversed on the law without costs and new trial granted. Memorandum: Plaintiff commenced this action after defendant rejected a fire loss claim submitted by her under her homeowner's insurance policy. In its answer, defendant asserted as affirmative defenses that the fire was caused by arson procured by Kamen Kamenov (Kamenov), plaintiff's husband and agent, and that plaintiff was not entitled to coverage because of intentional misrepresentation of material facts in the policy application and examinations under oath of plaintiff and Kamenov. The parties stipulated at trial that the fire was caused by arson, and defendant presented undisputed testimony that the arsonist was Eddie Mance, who died of smoke inhalation at the scene. The jury rendered a verdict in favor of plaintiff. We reverse the judgment and grant a new trial.

Supreme Court erred in permitting Kamenov to testify, over defendant's objection, that he had never been prosecuted for arson. That was error. Evidence of nonprosecution is inadmissible in a civil action ( see, Bazza v. Banscher, 143 A.D.2d 715, 716; see also, Kelly's Auto Parts, No. 1 v. Boughton, 809 F.2d 1247, 1252-1253; Goffstein v. State Farm Fire Cas. Co., 764 F.2d 522, 524). The court also erred in refusing to permit a defense witness to testify that Kamenov stated that he would give money to her for the children of Eddie Mance. That testimony fell within the admission exception to the hearsay rule. Although equivocal, Kamenov's statement indicated a consciousness of guilt ( see, Bazza v. Banscher, supra, at 716; see also, People v. Bennett, 79 N.Y.2d 464, 470), and the testimony was relevant to establish a relationship between Nance and Kamenov. Additionally, the court erred in precluding defendant from reading into evidence portions of the examinations under oath of plaintiff and Kamenov on the insurance claim. That evidence was relevant with respect to defendant's affirmative defense that plaintiff or her agent intentionally misrepresented material facts at their examinations under oath, thus invalidating the policy ( see, Sylvester, Inc. v. Aetna Cas. Sur. Co., 227 A.D.2d 212, lv dismissed in part and denied in part 89 N.Y.2d 914; see also, Dlugosz v. Exchange Mut. Ins. Co., 176 A.D.2d 1011, 1012-1013).

We conclude, however, that the court properly precluded the testimony of a witness that, on the night before the fire, Mance told him that Kamenov asked Mance to set fire to the property at Woltz and Sycamore. Double hearsay is admissible only if each hearsay statement falls within an exception to the hearsay rule ( see, 2 McCormick on Evidence § 324.1, at 368 [4th ed 1992]; see, e.g., O'Connor v. Incorporated Vil. of Port Jefferson, 104 A.D.2d 861). The statement of Mance to the witness was not admissible under the declaration against penal interest exception to the hearsay rule because, at the time the statement was made, it did not subject Mance to criminal prosecution and incarceration ( cf., People v. Settles, 46 N.Y.2d 154, 167-168; see also, People v. Brensic, 70 N.Y.2d 9, 15, mot to amend remittitur granted 70 N.Y.2d 722).

We further conclude that the court erred in denying defendant's request to charge separately the affirmative defenses of fraud and arson. Defendant submitted evidence in support of both affirmative defenses and therefore was entitled to have the jury instructed regarding each of them ( see generally, Long Is. Ski Ctr. v. Hartford Fire Ins. Co., 121 A.D.2d 368; Seawide Fish Mkt. v. New York Prop. Ins. Underwriting Assn., 111 A.D.2d 137). An erroneous instruction is "only deemed harmless when there is no view of the evidence under which appellant could have prevailed" ( Marine Midland Bank v. Russo Produce Co., 50 N.Y.2d 31, 43). Because the affirmative defenses, if credited by a jury, would have supported a verdict in defendant's favor, the error cannot be deemed harmless.

We have reviewed defendant's remaining contention and conclude that it is without merit.