The critical writing of July 9, 1963 was, in my view, properly admissible even under appellant’s narrow construction of the res gestae rule of Hatch v. Elkins (65 N. Y. 489),. and under the privity of obligation con*207cept as well (4 Wigmore, Evidence, [3d ed.], § 1077). Granted that embezzlement by some one was ascertained in June, it was not shown that, prior to the giving of the July 9 statement, there was ‘ ‘ discovery by the Insured * * * of any fraudulent or dishonest act on the part of” Tremblay, the bonded employee, within the language of the bond providing for cancellation of the bond upon such discovery. As respects either the res gestae rule or the 'privity of obligation rule, the employment continued. In any event, appellant’s present contentions that plaintiff discovered Tremblay’s guilt in mid-June and that, under appellant’s theory, the res gestae terminated at that time, was not appellant’s position at the trial nor the ground of its attorney’s objection to the reception of the July 9 statement in evidence; and, of course, the Trial Judge was not alerted to any such theory. Instead, the basis of appellant’s attorney’s objection was “that as soon as this loss was discovered, which admittedly was by the middle of June * * * the employment * * * had ceased by the terms of the policy ” (emphasis supplied); and thus appellant then made no claim that Tremblay’s guilt was discovered in June and that the July 9 statement was objectionable on that ground.
Gibson, P. J., Heklihy, Reynolds and Aulisi, JJ., concur in opinion per Heklihy, J.; Gibson, P. J., in a separate memorandum, in which Heklihy, Reynolds and Aulisi, JJ., concur; Staley, Jk., J., concurs in the result.
Judgment affirmed, with costs.