#### Pauline M. Stevens, Respondent, *v.*The Siegel-Cooper Co., Appellant.

(City Court of New York, General Term,

July, 1900.)

Principal and agent — Former not bound by admissions of the latter, unless a part of the res gestae.

Where a customer sues a company for injuries alleged to have been received by her from the negligent manner in which her nails were manicured by its servant, it being alleged that blood poisoning ensued, admissions of the operator, made six days after the treatment, to the effect that the instruments had never been sterilized, are inadmissible against the defendant — the rule being that the admissions of an agent do not bind the principal unless they are a part of the *res gestæ.*

*251Appeal from judgment in favor of the plaintiff, entered upon a verdict rendered by a jury and from an order denying a motion for a new trial.

Rose & Putzel (Gibson Putzel and Benjamin G. Paskusz, of counsel), for appellant.

Allan Lee Smidt, for respondent.

Schuchman, J.

This action is brought by the plaintiff against the defendant to recover damages occasioned by its negligence. On the trial the following facts were developed: On or about June 1, 1898 (on a Thursday or Friday), plaintiff went to the manicure parlor of the defendant, where one Miss Marshall was employed by it, to have her nails manicured; during the treatment Miss Marshall, in using the cuticle knife to push back the cuticle, wont too deep underneath, pricked'the skin and caused less than a drop of blood to form, just a mite; certain germs came in contact with the thus-caused abrasion, causing inflammation and paronychia, commonly called ringaround, and blood poisoning. The testimony adduced by plaintiff tended to show and establish that the germ was connected 'with the abrasion by the septic cuticle knife of the manicurist, Miss Marshall. Dr. Bradley, a physician, a witness on the plaintiff’s behalf, testified that the plaintiff called on him on Monday, the fifth of June, to get medical advice; that he then made a diagnosis of paronychia, which is an inflammation all around the nail; the inflammation was around the root of the nail; the whole finger was swollen, but not as much as the next day; he put on a solution of bichloride of mercury and told her to come back next day; she came back next day and he found the whole arm swollen.

The plaintiff was permitted to testify, over the objection of counsel, that on the Tuesday following the day (Thursday or Friday) on which she had been treated by Miss Marshall, being June sixth; she went to *“*see Miss Marshall and tell her about it.” Then the following questions were asked and answered: “ Q. Was anything said at that interview by Miss Marshall to you respecting the condition of the instruments at the time she operated on you? (Objected to. Overruled. Exception.) A. Yes. Q. What was said? (Same objection, ruling and exception.) A. That the in*252struments had not been sterilized and never had been, and that ¡Mass Waterman (manager of the manicure department) had never provided acid or anything for to dip the instruments into.”

This is error. 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 gestæ,*during the continuance of the agency. Waldele v. N. Y. Central R. R. Co., 95 N. Y. 275; Anderson v. Rome, W. & O. R. R. Co., 34 id. 334; Luby v. Hudson R. R. Co., 17 id. 131; Sherman v. Delaware, L. & W. R. R. Co., 106 id. 542-546. In the case at bar, the above statements were made by Miss Marshall six days after the occurrence of the act complained of. They were incompetent as evidence. Upon this incompetent evidence the trial judge laid particular stress in his charge.

Judgment and order appealed from reversed; new trial granted; costs to appellant to abide the event.

Conlan and Hascall, JJ., concur.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.