Opinion
July 1, 1942.
Present — Crosby, P.J., Cunningham, Taylor, Dowling and McCurn, JJ.
Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: It was error to permit plaintiff to prove that the driver of defendant's truck had pleaded guilty to the crime of violating section 167 Lab. of the Labor Law. The driver's plea of guilty amounted to an admission which was not a part of the res gestae, and he was not a party to the action. ( Max v. Brookhaven Development Corp., 262 App. Div. 907; Cook v. A. P. Tea Co., 244 id. 63; affd., 268 N.Y. 599; Golden v. Horn Hardart Co., 244 App. Div. 92; affd., 270 N.Y. 544; Dunnet v. Levy, 261 App. Div. 295. ) The cases of Schindler v. Royal Ins. Co. ( 258 N.Y. 310) and Same v. Davison ( 253 App. Div. 123) are not applicable. In each of those cases the witness who made the admission was a party to the action. All concur. (The judgment is for plaintiff in an automobile negligence action.)