Goldin v. Reiss Manufacturing Corp.

Appellate Division of the Supreme Court of New York

Goldin v. Reiss Manufacturing Corp.

19 A.D.2d 608, 241 N.Y.S.2d 123, 1963 N.Y. App. Div. LEXIS 3588

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

DecidedJune 18, 1963

StatusPublished

This text of 19 A.D.2d 608 (Goldin v. Reiss Manufacturing Corp.) 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

Goldin v. Reiss Manufacturing Corp., 19 A.D.2d 608, 241 N.Y.S.2d 123, 1963 N.Y. App. Div. LEXIS 3588 (N.Y. Ct. App. 1963).

Pincite

Opinion

Judgment entered June 27, 1962, in favor of plaintiff, unanimously reversed on the law and on the facts, and a new trial ordered, with costs to abide the event. The cause of action as set forth in the complaint was based upon a theory of the supplying of a defective instrumentality for plaintiff’s use. At the trial the theory upon which liability was sought to be predicated was the assurance of safety concept. This was embraced within the court’s charge as given originally but, upon exception, the court admonished the jury to disregard it since this theory of liability was not pleaded or advanced in the bill of particulars. The injection of this theory by plaintiff, which remained throughout the trial, undoubtedly improperly influenced the verdict. In light of plaintiff’s version of the areeident and the accounts given by Kraus, plaintiff’s superior, and Tubridy, appellant’s foreman, the finding of defendant’s negligence, implicit in the jury’s verdict, is against the weight of the credible evidence. (Cf. Politi v. Irvmar Realty Corp., 7 A D 2d 414.) Concur - — Botein, P. J., Breitel, Rabin, McNally and Stevens, JJ.

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Judgment entered June 27, 1962, in favor of plaintiff, unanimously reversed on the law and on the facts, and a new trial ordered, with costs to abide the event. The cause of action as set forth in the complaint was based upon a theory of the supplying of a defective instrumentality for plaintiff’s use. At the trial the theory upon which liability was sought to be predicated was the assurance of safety concept. This was embraced within the court’s charge as given originally but, upon exception, the court admonished the jury to disregard it since this theory of liability was not pleaded or advanced in the bill of particulars. The injection of this theory by plaintiff, which remained throughout the trial, undoubtedly improperly influenced the verdict. In light of plaintiff’s version of the areeident and the accounts given by Kraus, plaintiff’s superior, and Tubridy, appellant’s foreman, the finding of defendant’s negligence, implicit in the jury’s verdict, is against the weight of the credible evidence. (Cf. Politi v. Irvmar Realty Corp., 7 A D 2d 414.) Concur - — Botein, P. J., Breitel, Rabin, McNally and Stevens, JJ.

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Bluebook (online)

19 A.D.2d 608, 241 N.Y.S.2d 123, 1963 N.Y. App. Div. LEXIS 3588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldin-v-reiss-manufacturing-corp-nyappdiv-1963.