The infant plaintiff, five years of age, resided with his parents orie flight above the ground floor in the defendant’s tenement house. It is alleged that on November 6, 1921, at about six p. m., he fell on the stairway leading to the ground floor and fractured the bones of his right thigh. He was permitted to make an unsworn statement to the jury, giving his version of the accident.
That such evidence is inadmissible was held in Stoppick v. Goldstein (174 App. Div. 306). In that case the court said: “ 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.”
The court further said: “Although this objection was not taken below, or urged upon this appeal, we cannot ignore such error * * (See, also, Michel v. Semer, 205 App. Div. 281; Gehl v. Bachmann-Bechtel Brewing Co., 156 id. 51; Neustadt v. New York City R. Co., 104 N. Y. Supp. 735.)
If we eliminate the testimony of the child there is no evidence to *214show bow the accident occurred. Negligence was not established by the testimony of other witnesses.
As the unsworn testimony of an infant constitutes the sole evidence tending to establish liability, the judgment should be reversed.
The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Clarke, P. J., Dowling, Finch and McAvoy, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to appellant to abide the event.