The case of Galbraith v. Busch (267 N.Y. 230) would be determinative of the instant action were it not for the statement claimed to have been made by defendant to plaintiff. The jury could have found that it constituted an admission of negligence and thus, with the other evidence, established plaintiff's cause of action. The court in its charge made no reference to the statement and when requests to charge were made, declined to permit it to be considered by the jury in determining the question of defendant's negligence. That was error requiring reversal. (Gangi v. Fradus, 227 N.Y. 452, 456; Koester v.Rochester Candy Works, 194 N.Y. 92, 97.)
The judgments should be reversed and a new trial granted, with costs in all courts to abide the event.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Judgments reversed, etc. *Page 309