Opinion of the Court, per EARL, J. N. Y. 207), the plaintiff sought to show his own declarations, while performing, or endeavoring to perform, his agreement, for the purpose of characterizing the agreement itself, and they were held incompetent. GRAY, J., writing the opinion, said: "The general rule is that declarations, to become a part of the res gesta, must accompany the act which they are supposed to characterize, and must so harmonize as to be obviously one transaction." In Luby v. II. R. R. R. Co. (17 N. Y. 131), the action was for alleged negligence in running a railroad car, drawn by horses, against the plaintiff in one of the streets of the city of New York. Upon the trial he was allowed to prove that, immediately after the accident, a policeman arrested the driver of the car, and that upon arresting him, as he was getting off the car, and out of the crowd which surrounded him, he asked why he did not stop the car; to which the driver replied that the brake was out of order. This evidence was objected to on the part of the defendant. The plaintiff recovered a judgment which was affirmed by the Supreme Court at General Term. The defendant then appealed to this court, and the judgment was reversed on two grounds-(1), because proof of the arrest was allowed; (2), because the declaration of the driver was received. Upon the latter ground, COMSTOCK, J., writing the opinion, said: "The declarations of an agent or servant do not, in general, bind the principal. Where his acts will bind, his statements and admissions respecting the subject-matter of those acts will also bind the principal if made at the same time, and so that they constitute a part of the res gesta. To be admissible they must be in the nature of original and not hearsay evidence. They must constitute the fact to be proved, and must not be the mere admission of some other fact. They must be made not only during the continuance of the agency, but in regard to a transaction depending at the very time;" and further: "The declaration was no part of the driver's act, for which the defendants were sued. It was not made at the time of the act, so as to give it quality and character. The alleged wrong was complete, and the driver, when he made the statement, was only Opinion of the Court, per EARL, J. endeavoring to account for what he had done." In Hamilton v. N. Y. C. R. R. Co. (51 N. Y. 100), the plaintiff was ejected from the cars of the defendant on his way from Utica to Albany, at St. Johusville, by the conductor, because he did not then have a ticket, and was unwilling to pay his fare. He then paid his fare under protest, and re-entered the car, and went to Albany. Shortly after reaching Albany he went to the conductor, and, with the assistance of the person who had acted as conductor west of Utica, satisfied him that he had paid his fare, whereupon the conductor refunded the fare to him; and he was allowed to prove, against the objection of the defendant, a conversation then had between him and the conductor, in which the latter applied to him very slanderous and abusive epithets, as a part of the res gesta. The Commission of Appeals held that that evidence was erroneously received, and reversed the judgment and granted a new trial, holding that that conversation, although it took place at the time the conductor refunded the fare, was not part of the res gesta, in a suit to recover damages for being ejected from the cars at St. Johnsville. In Whitaker v. Eighth Ave. R. R. Co. (51 N. Y. 295), the action was brought to recover damages for an injury caused by the willful act of one of the defendant's car drivers in running one of its cars against the plaintiff, and throwing him into an excavation by the side of the track; and the plaintiff, in order to sustain his allegation of the driver's intention to do him an injury, was permitted to prove by a witness that immediately after the car passed he heard the driver cursing and damning the plaintiff, saying, "Let him fall in and be killed." The trial judge held that the declaration was a part of the res gesta, and, therefore, admissible. The evidence was objected to on the part of the defendant, and the Commission of Appeals decided that it was error to receive it; and for that and other reasons reversed the judgment and granted a new trial, holding that the declaration made by the driver after the car had passed, and the injury was done, was no part of the res gesta. In People v. Davis (56 N. Y. 95), upon an indictment under the statute against abortions, the woman upon Opinion of the Court, per EARL, J. whose person the abortion was attempted being dead, the district attorney was permitted to prove that she went away with the defendant in a buggy, and returned in the night, and what on her return she said to a witness had been done and said to her by the doctor who performed the operation upon the alleged procurement of the defendant. This evidence was objected to on the part of the defendant, and the General Term reversed the judgment of conviction by the Oyer and Terminer. The case was then brought into this court by writ of error on behalf of the people; and the decision at the General Term was affirmed, this court holding that the declarations proved were simply a narrative of a past transaction, and not competent as part of the res gesta. GROVER, J., writing the opinion of the court, said: "In this case the thing done, or res gestæ, was at the doctor's office in another town, and it is clear that its narration by the deceased was no part of that thing. Any thing said accompanying the performance of an act, explanatory thereof, or showing its purpose or intention, when material, is competent as a part of the act. But when the declarations offered are merely narratives of past occurrences they are incompetent. That is precisely this case. The declarations given in evidence were a mere statement of what had been done at the doctor's office, and not any part of what was then done, and, therefore, no part of the res gestæ ;" and speaking of the case of the Ins. Co. v. Mosley, supra, he said that the doctrine as to what may be regarded as a part of the res gestæ was certainly carried to its utmost limit in that case by the majority of the court. And he further very appropriately said: "The length of time between the act and its subsequent narration by one of the actors I do not regard as material. The question is, did the proposed declaration accompany the act, or was it so connected therewith as to constitute a part of it? If so, it is a part of the res gesta and competent; otherwise, not." In Tilson v. Terwilliger (56 N. Y. 273), FOLGER, J., lays down the rule as to res gesta declarations as follows: "to be a part of the res gesta they must be made at the time of the act done, which they are supposed to characterize; they must Opinion of the Court, per EARL, J. be calculated to unfold the nature and quality of the acts which they are intended to explain; they must so harmonize with those facts as to form one transaction. There must be a transaction of which they are considered a part; they must be concomitant with the principal act, and so connected with it as to be regarded as the result and consequence of co-existing motives." In Casey v. N. Y. C. & H. R. R. R. Co. (78 N.Y. 518) it was held, as stated in the head note, that "the testimony of a witness as to what occurred after the accident was competent as part of the res gesta;" but it was so held for the reason that the occurrences there referred to constituted a part of the transaction. A child had been run over, and on the trial a police officer, who went to the place of the accident immediately after the child was killed, and found the child under the wheels of the car, was permitted as a witness for the plaintiff to state what the engineer in charge of the engine said and did in extricating the body of the child from under the wheels of the car. The evidence was clearly competent as a part of the res gesta. The counsel for the plaintiff, in his argument before us to justify this evidence, cited but two cases from the reports of this State; Swift v. Mass. Mut. Life Ins. Co., (63 N. Y. 186), and Schnicker v. People (88 N. Y. 192). In the first case it was held that in an action upon a policy of life insurance, issued upon the life of one person for the benefit of another, evidence of declarations made to third parties by the insured at a time prior to, and not remote from, that of his examination and in connection with facts, or acts, exhibiting his then state of health (for instance, declarations made by him when apparently ill, as to the nature or cause of his illness) is competent upon the question as to the truthfulness of statements made by him to the examining physician, as to his knowledge that he had, or had not had, a certain disease, or symptoms of it. It is difficult to perceive how any thing decided in that case, or stated in the opinion of the court, can have any material bearing upon this. In the second case, Schnicher was indicted for the offense of taking a woman, un Opinion of the Court, per EARL, J. lawfully against her will, with the intent to compel her by force, menace, or duress to be defiled. The evidence tended to show that the prosecutrix went to a house of prostitution kept by the prisoner, not knowing the character of the house, for the purpose of obtaining employment as a domestic; that the prisoner detained her there by exciting her fears that if she left she would be arrested, and by keeping the outer door locked; that the prisoner plied her daily with solicitations to consent to the defilement of her person, but she refused; that finally the prisoner told her to go upstairs with a man, and upon her refusal, opened the door of the room where she was and shoved her into the hall, whereupon she went upstairs to her room, and in a half hour after a man called the "boss" came to her room with another man and left him there, and this man by force defiled her: and it was held that the evidence as to what occurred in the room of the prosecutrix was properly received; that the occurrence was part of the res gesta, and might reasonably be inferred to have been in pursuance of the scheme of the prisoner to subject the prosecutrix to defilement. Judge ANDREWS, writing the opinion of the court, said: "We think the evidence was competent. It was so closely connected in point of time with the direction of the prisoner, that the prosecutrix should go to her room with a man, as to constitute a part of the res gesto, and what followed, might reasonably be inferred to have been in pursuance of the scheme of the prisoner to subject the prosecutrix to defilement." That case furnishes no support for the claim of the plaintiff, that the declarations in this case were properly received. I have now called attention to the principal authorities in this State, upon the doctrine of res gesta evidence, and I have examined all the other cases which have been reported in this State relating to the doctrine, and I confidently assert that there is no authority in this State for holding that this evidencewas competent. Here the res gesta, strictly and accurately speaking, was not the fact that the intestate was injured, nor the fact that he was injured by coming in collision with the |