Cleary v. Sweeney Realty Corp.

249 A.D. 651, 291 N.Y.S. 570, 1936 N.Y. App. Div. LEXIS 5398

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1936
• Status: Published

Opinion

Action by wife and husband to recover respectively for personal injuries and loss of services as a result of the wife’s falling down a stairway. As to the individual defendant, the complaint was dismissed at the close of plaintiffs’ case, and from that determination no appeal has been taken. As to the corporate defendant, the jury brought in a verdict in its favor. Prom that part of the judgment in favor of the corporate defendant, the plaintiffs appeal. Judgment as to the corporate defendant unanimously affirmed, with costs. The questions of fact as to negligence, contributory negligence, and whether there was fraud or misrepresentation used in obtaining release, were all submitted to the jury. While the remarks of the trial justice were improper, they did not affect the trial because the proof clearly preponderated in favor of the corporate defendant in so far as the general release is concerned. Present — Lazansky, P. J., Young, Johnston, Adel and Taylor, JJ.