Opinion
February 19, 1940.
The action was brought by an infant to recover for personal injuries, and by his father for loss of services, resulting from an accident in which the infant's arm went through a pane of glass in the inner vestibule door of the apartment house in which plaintiffs lived. Plaintiffs claimed that the cause of the accident was the sudden slamming of the door, due to an improperly adjusted door-check. Judgment in favor of defendants Jenkinson and Mortgage Commission of the State of New York, and order denying motion for a new trial, in so far as appealed from, reversed on the law and a new trial granted, with costs to abide the event. It was error to permit the superintendent of the building to testify, in substance, that on prior occasions he had observed the infant opening the door by pushing on the glass panel. The only possible purpose of such evidence was to create an inference in the minds of the jury that the boy had done the same thing at the time of the accident, and that the accident was caused by his own negligence. The evidence was incompetent. ( Warner v. The New York Cen. R.R. Co., 44 N.Y. 465; Eppendorf v. B.C. and N.R.R. Co., 69 id. 195; Zucker v. Whitridge, 205 id. 50.) There was further error in the admission in evidence of Defendants' Exhibits B and C, over proper objection to the self-serving and hearsay statements which they contained. The errors were material and reversible. Lazansky, P.J., Hagarty, Carswell, Johnston and Close, JJ., concur.