Eisner v. Daitch Crystal Dairies, Inc.

27 A.D.2d 921, 279 N.Y.S.2d 247, 1967 N.Y. App. Div. LEXIS 4394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1967
• Status: Published

Opinion

Judgment, entered on a verdict in favor of defendant on issue of liability, unanimously reversed and vacated, on the law, on the facts and in the interests of justice, and a new trial ordered on said issue, with $50 costs and disbursements to abide the event. It appears that if the plaintiff had been permitted to recall herself, her testimony may have contradicted, impeached or discredited material testimony of defendant’s witness, the store manager. Therefore, it was an abuse of discretion for the trial court to deny plaintiffs’ right to testify in rebuttal following the close of defendant’s case. (See Ankersmit v. Tuch, 114 N. Y. 51; see, also, 8 Carmody-Wait 2d, New York Practice, § 56:107.) Furthermore, on the record here, there was no justification for the questioning of plaintiffs’ counsel by the trial court, in the presence of the jury, as to whether or not there had been a motion made to dismiss the case for failure to prosecute and, when counsel refused to answer the question, for the trial court to state, “ I’m not going to force you to answer it and the jury can draw their own conclusions.” Plaintiffs’ motion for a mistrial, then made, should have been granted. (See Habenicht v. RKO Theatres, 23 A D 2d 378; Salzano v. City of New York, 22 A D 2d 656.) Finally, the charge of the trial court with reference to the issues and applicable law appertaining to the alleged negligence of the defendant was inadequate, and this requires a new trial in the interests of justice. (Poyas v. RKO Theatres, 14 A D 2d 358; U. S. Vitamin & Pharmaceutical Corp. v. Capitol Cold Storage Co., 21 A D 2d 661.) Concur — Botein, P. J., Stevens, Eager, Rabin and McNally, JJ.