Como v. Bastolla

Appellate Division of the Supreme Court of New York

Como v. Bastolla

19 A.D.2d 531, 240 N.Y.S.2d 386, 1963 N.Y. App. Div. LEXIS 3672

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 29, 1963

StatusPublished

Cited by1 cases

This text of 19 A.D.2d 531 (Como v. Bastolla) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Como v. Bastolla, 19 A.D.2d 531, 240 N.Y.S.2d 386, 1963 N.Y. App. Div. LEXIS 3672 (N.Y. Ct. App. 1963).

Pincite

Opinion

— Judgment appealed from unanimously reversed on the law, and a new trial ordered in the exercise of discretion and in the interests of justice, with costs to abide the event. Reversible error was committed in receiving into evidence the record of previous traffic infractions which the trial court considered as “both relevant and material” to its determination (cf. De Btasio v. Janssen Dairy Corp., 279 N. Y. 501). The issue of negligence in this case was to be determined by the court on the evidence before it and not on the basis of a presumption raised or created by reason of the prior infractions (Flannagcm v. Brown, 211 App. Div. 694). Where an appeal from a judgment in a nonjury case is not affirmed, this court generally will grant the judgment which the court below ought to have granted (Civ. Prae. Act, § 584, subd. 2; Greater N. Y. Mut. Ins. Go. v. Perry, 6 A D 2d 432). The error referred to prevented a correct determination on the facts and we do not in .this case deem the record an adequate basis for the determination of the factual issues involved. In the interests of justice, a new trial should be directed. Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.

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— Judgment appealed from unanimously reversed on the law, and a new trial ordered in the exercise of discretion and in the interests of justice, with costs to abide the event. Reversible error was committed in receiving into evidence the record of previous traffic infractions which the trial court considered as “both relevant and material” to its determination (cf. De Btasio v. Janssen Dairy Corp., 279 N. Y. 501). The issue of negligence in this case was to be determined by the court on the evidence before it and not on the basis of a presumption raised or created by reason of the prior infractions (Flannagcm v. Brown, 211 App. Div. 694). Where an appeal from a judgment in a nonjury case is not affirmed, this court generally will grant the judgment which the court below ought to have granted (Civ. Prae. Act, § 584, subd. 2; Greater N. Y. Mut. Ins. Go. v. Perry, 6 A D 2d 432). The error referred to prevented a correct determination on the facts and we do not in .this case deem the record an adequate basis for the determination of the factual issues involved. In the interests of justice, a new trial should be directed. Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.

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Bluebook (online)

19 A.D.2d 531, 240 N.Y.S.2d 386, 1963 N.Y. App. Div. LEXIS 3672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/como-v-bastolla-nyappdiv-1963.

Opinion

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