Crist v. Sherry

281 A.D. 883, 119 N.Y.S.2d 326, 1953 N.Y. App. Div. LEXIS 3670

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1953
• Status: Published

Opinion

Action by plaintiff wife to recover damages for personal injuries alleged to have been sustained because of the negligence of defendant Telson, a surgeon, in applying a cast on her fractured leg, and by her husband to recover for loss of services and for medical expenses. The jury rendered a verdict in favor of plaintiff wife for $20,000 and in favor of plaintiff husband for $10,000 against said defendant. The trial court granted said defendant’s motion to set aside the verdict and granted his motion, made at the end qf the case, to dismiss the complaint. Plaintiffs appeal from the order setting aside the verdict and dismissing the complaint and from the judgment entered thereon. Order modified on the facts by striking therefrom the second ordering paragraph and by substituting therefor a provision granting a new trial. As so modified, the order is unanimously affirmed, without costs. Judgment modified on the facts by striking therefrom the second decretal paragraph and by substituting therefor a provision granting a new trial, and by striking from the third decretal paragraph the words “and David Robert Telson”. As so modified, the judgment is unanimously affirmed, with costs to abide the event. The verdict was against the weight of the evidence and was properly set aside. It was error, however, to have dismissed the complaint since the proof presents issues of fact which should be resolved by a jury upon a new trial. Present — Holán, P. J., Carswell, Adel, Wenzel and Schmidt, JJ.