Gundersen v. Great Atlantic & Pacific Tea Co.

241 A.D. 873

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1934
• Status: Published

Opinion

Order denying motion to resettle case on appeal affirmed, with ten dollars costs and disbursements. This court may not disturb the rulings of the trial judge in settling a case where an issue of fact arises as to whether an incident did or did not take place on a trial or an exception was or was not taken on a trial. In Zimmer v. Metropolitan Street R. Co. (28 App. Div. 504) there was no issue of fact arising as a result of conflicting contentions or affidavits. The lack of an exception will not disable this court from doing justice where a prejudicial ruling was made on an objection taken to an incident or a question. Lazansky, P. J., Kapper, Carswell, Scudder and Tompkins, JJ., concur.