By the Code of Criminal Procedure, section 392 (as amd. by Laws of 1892, chap. 279), children actually or apparently under the age of twelve years may testify in special cases without taking an oath; but such evidence is not sufficient to convict, unless corroborated or supported. This, however, is only applicable to criminal cases. No such exception was known to the common law. (See Cent. Dig. “Witnesses,” §§ 97, 98.)
Although our Code of Civil Procedure (§ 850) provides for a preliminary examination of an infant to ascertain his capacity and the extent of his knowledge, this does not permit the court to cast off the safeguard of an oath, which the law has placed on testimony. The trial court should have ascertained whether this plaintiff, nine years old at the time of hearing, was of sufficient capacity to comprehend the obligation of an oath, and, if so, should have had him sworn. Unsworn testimony of a child is inadmissible in a civil case. (Neustadt v. New York City R. Co., 104 N. Y. Supp. 735; Gehl v. Bachmann-Bechtel Brewing Co., 156 App. Div. 51; Chamberlayne Evidence, § 3639.)
Although this objection was not taken below, or urged upon this appeal, we cannot ignore such error, or regard the silence of counsel as a waiver. Hence the recovery based so largely on this unsworn testimony cannot stand.
The judgment and order of the County Court of Kings county is, therefore, reversed and a new trial ordered, costs to abide the event.
Stapleton, Mills, Rich and Putnam, JJ., concurred.
Judgment and order of the County Court of Kings county reversed, and new trial ordered, costs to abide the event.