Garelick v. Giles

Appellate Division of the Supreme Court of New York

Garelick v. Giles

264 A.D. 233, 35 N.Y.S.2d 225, 1942 N.Y. App. Div. LEXIS 4119

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

DecidedJune 5, 1942

StatusPublished

This text of 264 A.D. 233 (Garelick v. Giles) 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

Garelick v. Giles, 264 A.D. 233, 35 N.Y.S.2d 225, 1942 N.Y. App. Div. LEXIS 4119 (N.Y. Ct. App. 1942).

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Opinion

Per Curiam.

Upon the record we think that plaintiffs were deprived of their right to have the jury determine the question of the credibility of witnesses uninfluenced by the opinion of the court. Though the court did not directly state to the jury its opinion of the facts, the conclusion is inescapable that the language of the charge was calculated to convey to the jury the impression that the criticisms contained therein were all directed against plaintiffs. At one point the court went so far as to state: “ It is a very serious question indeed whether, even on his own story, he [infant plaintiff] is entitled to a verdict.” In such circumstances it could hardly be anticipated that plaintiffs’ evidence would receive at the hands of the jury that impartial consideration guaranteed by law. A new trial is accordingly warranted. (Hogan v. Central Park, North and East River R. R. Co., 124 N. Y. 647, 649; Hunt v. Becker, 173 App. Div. 9; Broderick v. Brooklyn, Queens County & S. R. R. Co., 186 id. 546.)

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Present Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ.

Judgment unanimously reversed and a new trial ordered, with costs to the appellants to abide the event.

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Per Curiam.

Upon the record we think that plaintiffs were deprived of their right to have the jury determine the question of the credibility of witnesses uninfluenced by the opinion of the court. Though the court did not directly state to the jury its opinion of the facts, the conclusion is inescapable that the language of the charge was calculated to convey to the jury the impression that the criticisms contained therein were all directed against plaintiffs. At one point the court went so far as to state: “ It is a very serious question indeed whether, even on his own story, he [infant plaintiff] is entitled to a verdict.” In such circumstances it could hardly be anticipated that plaintiffs’ evidence would receive at the hands of the jury that impartial consideration guaranteed by law. A new trial is accordingly warranted. (Hogan v. Central Park, North and East River R. R. Co., 124 N. Y. 647, 649; Hunt v. Becker, 173 App. Div. 9; Broderick v. Brooklyn, Queens County & S. R. R. Co., 186 id. 546.)

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Present Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ.

Judgment unanimously reversed and a new trial ordered, with costs to the appellants to abide the event.

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Bluebook (online)

264 A.D. 233, 35 N.Y.S.2d 225, 1942 N.Y. App. Div. LEXIS 4119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garelick-v-giles-nyappdiv-1942.

Opinion

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