Handel v. New York Rapid Transit Corp. , 252 A.D. 142 ( 1937 )

Taylor, J.

In an action to recover damages for the death of plaintiff-appellant’s intestate alleged to have resulted from the negligence of the defendant-respondent, judgment dismissing the complaint, entered upon a nonsuit, affirmed, with costs. The plaintiff’s proofs failed to establish, prima fade, a cause of action. The claimed declaration of the intestate after the happening of the accident, to wit, “ Save me. Help me — why did that conductor close the door on me,” was incompetent as evidence and properly excluded by the trial court. The declaration was not admissible as part of the res gestee. (Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274; Martin v. N. Y., N. H. & H. R. R, Co., 103 id. 626; Greener v. General Electric Co., 209 id. 135; Hill v. Erie Railroad Co., 221 App. Div. 518.) It was narrative of a past event and within the hearsay rule.

Davis, Adel and Taylor, JJ., concur; Close, J., with whom Hagarty, J., concurs, dissents and votes for reversal of the judgment and for a new trial, with opinion.