Hilowitz v. Board of Education

272 A.D.2d 826

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 1947
• Status: Published

Opinion

Action to recover damages for personal injuries sustained by reason of a fall from a gymnastic apparatus, as the result of the alleged negligence of defendant. At the trial of the action, and after a jury had been sworn, the court ruled that the issue of timeliness of service of notice of intention to sue be separately tried prior to the trial of other issues in the case, whereupon plaintiff applied for and procured an adjournment. Upon resumption of the trial on the adjourned day, the court, in the presence of the jury, granted the motion of defendant to dismiss after plaintiff expressly had declined further to proceed. Judgment dismissing complaint reversed on the facts, without costs, and, a new trial granted, on the ground that the action of the Trial Justice, on his own motion, in "severing the issues and directing a separate trial of the issue of timeliness of service of the notice of intention to sue, was an improvident exercise of discretion. Hagarty, Acting P. J., Carswell, Adel, Holán and Sneed, JJ., concur.