(dissenting) :
The objection to the evidence was not that it was incompetent against the appellant,, but against “ either of the defendants,” and the exception taken was also joint. Hence, after an every-day rule, the exception is not good if the question was admissible against either defendant. The. trial judge seems to have deemed itadmissible against defendant Bloomingdale (who was granted a non-suit later on), as ténding to get’ an admission of him against himself concerning the battery, and counsel for the appellant seems to be still of that View. The question was allowed on that theory only, and hence against Bloomingdale only. But this was erroneous, for the conversation being not with Bloomingdale but with his salesman, the question was not competent against him, for such an admission after the fact by an agent is not binding on the principal.
The question having been asked and allowed against the defendant Bloomingdale only, and on the theory that it was competent against him only, the appellant should have moved that it be struck out after the complaint, had been dismissed as to Bloomingdale; if he thought it could harm him. Having failed to do so, he should not now be permitted to claim that he Was injured by it. It is obvious that he attached no importa/nee to it on the trial, and that no one else did. , ■ x
But the evidence could not in the minds of sensible men have done the appellant any harm, and we must rate trial judges and jurymen as sensible men, though there may be a tendency to the contrary. It could not even have done Bloomingdale any harm if the case against him had gone to the jury, for no admission against him was obtained, which was the sole object of the evidence. On what foundation then may it be said to have injured the appellant ?
And it must be borne in mind that this evidence was' not by the plaintiff, but by her daughter, who was not present at the battery. What would we have to think- of juries in order' to say that this jury may have been influenced in deciding whether there was a *401battery by the gab of a person who was not present at the occurrence at all By declaring such a whimsical opinion of juries, it seems to me that we might provoke a like opinion of ourselves.
It would be very easy for us sitting here to assume a sense of exclusive average intelligence in ourselves, and say that the evidence could not have affected us.— quite absurd to suggest it—but that we do hot know but that it influenced the jury, and may be the trial judge — which is of course putting them below par in intelligence. I am not willing to join in that. We have already had much of that in this State. Very recently a learned judge voiced his own estimate of juries, if not that of his court, by saying (in á case tried in Kings county and that went up from this court). “ we should not be hypercritical in construing it (the charge) simply because a jury has unexpectedly rendered a verdict in favor of a railroad corporation.” How strange this sounds to the bench and bar of . this part of the State will be understood when it is stated from the records that here in Kings county such corporations constantly get over sixty-five per cent of the verdicts;. and the same is true generally in this judicial department. If there be localities which are afflicted with ignorant or prejudiced verdicts, that is not the fault of the jury system, but of the public officials Who summon unfit jurymen and leave the fit men off the panel, and of the local bench and bar which suffer such a wrong to continue.
It is not enough that it was a technical error under the common-law rules of evidence to admit the evidence. Trial judges are to be guided by such rules of evidence, it is true ; but that does not mean that they must avoid all error in order to make judgments good; that judgments must be reversed for every error in the, admission of evidence. A trial judge is not perfect any more than we or any of the sons of' men are. A rule of perfection can no more be applied to the trial of a law suit than to any other human' transactions. A rule of common sense is the working rule of this world, and the law never departs from common sense, though it may sometimes be made to seem to do iso.
Judgment and order reversed and new trial granted, costs to abide the event.