Ierardi v. Reisberg & Reiner, Inc.

244 A.D. 822

Opinion

In an action to recover damages for personal injuries sustained by plaintiff when struck by a brick which fell through an opening in the third floor of a building on which alterations were in progress, order setting aside a verdict for $9,000 in plaintiff’s favor modified so as to provide that a new trial be granted, costs to abide the event, and as so modified unanimously affirmed, without costs. The respondent, by its answer, admitted that it was the general contractor, and that Reisberg & Reiner, Inc., was one of its subcontractors. The respondent’s only liability, if any, was under rule 1237 of the Industrial Code, Bulletin No. 23, which rule was not received or offered in evidence, and was improperly read to the jury by the court in its charge. The court erred in leaving to the jury the question of the applicability of subdivision 5 of section 241 of the Labor Law. The amount of the verdict indicates a finding by the jury that plaintiff sustained a fracture of his skull, which finding is clearly against the weight of the evidence. Present — Lazansky, P. J., Hagarty, Tompkins, Davis and Johnston, JJ.