I dissent from a majority of the court and vote to reverse the judgment appealed from and for a new trial.
There was no competent evidence at the trial showing that the taxicab automobile that struck the plaintiff wife was owned by the defendant. While the defendant did not, in his answer, deny the allegation of the complaint that he was the owner of the taxicab automobile bearing registration license “ No. 021-470, N-, Y, 1931,” *117neither the plaintiff wife, who was struck, nor the plaintiff husband was able to identify the taxicab which struck the plaintiff wife as that of the defendant. The only testimony in that regard was that of the plaintiff husband, who testified that it was a “ yellow car.” The plaintiff husband further testified that, after the accident, “ I immediately ran over and picked her up and put her in a taxicab.” The husband was then asked the following leading question by his trial counsel: “ Q. Was it the same taxicab? ” to which he answered, “ Yes, sir.” Whether the taxicab in which the injured woman was placed was the defendant’s or one of two other cars there present, does not appear. There was no proof given that defendant’s car was yellow in. color, and the great number of yellow cars operating in this city destroyed any probative value of such proof. The only attempt on the part of plaintiffs to prove that the^car which struck plaintiff wife was defendant’s was that of a police officer, who testified that at the hospital where the injured woman was taken some chauffeur by the name of Quinn told him the number of his taxicab was “ 021-470 N. Y.” Who Quinn was, or what his connection with defendant was, the testimony does not disclose. The record contains no evidence that the police officer’s informant was the chauffeur who took the injured woman to the hospital. Therefore, plaintiffs were unable by such testimony to connect the defendant with the accident. Furthermore, the testimony of the police officer as to what the chauffeur Quinn had told him was clearly incompetent. It was received under the objection and exception of defendant’s trial counsel. The alleged statement of the unidentified chauffeur to the police officer, long after the accident, was no part of the res gestae and was clearly hearsay and should have been excluded under objection by defendant’s trial counsel. (Page v. Hirsch, 207 App. Div. 733.)
I, therefore, vote for reversal and for the granting of a new trial.
Judgment affirmed, with costs.