Di Stefano v. Anthony O'Boyle, Inc.

263 A.D. 878, 32 N.Y.S.2d 212, 1942 N.Y. App. Div. LEXIS 7182

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1942
• Status: Published

Opinion

Action to recover damages for personal injuries sustained by plaintiff during the alleged negligent operation of a crane at a time when it was in the possession and control of plaintiff’s employer under a charter party. Judgment dismissing the complaint reversed on the law and a new trial granted, costs to abide the event. Appeal from the decision dismissed, without costs. The motion to dismiss the complaint should have been granted before the issues of fact were submitted to the jury because the defendant is not liable in negligence to the plaintiff. ( Kohrn v. Boyer Lighterage Corp., 262 App. Div. 762.) The verdict was properly set aside as contrary to law; but the trial court was without power to dismiss the complaint since it had denied motions to dismiss the complaint which were made before the issues were submitted to the jury. (Dougherty v. Salt, 227 N. Y. 200; Griffith v. Southfield Beach R. R. Co., 240 App. Div. 845.) Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.