Kotcher v. Gilbert

Appellate Division of the Supreme Court of New York

Kotcher v. Gilbert

271 A.D.2d 899

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

DecidedDecember 23, 1946

StatusPublished

This text of 271 A.D.2d 899 (Kotcher v. Gilbert) 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

Kotcher v. Gilbert, 271 A.D.2d 899 (N.Y. Ct. App. 1946).

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Opinion

Action by plaintiff wife to recover damages for personal injuries sustained as the result of the alleged negligent operation of a motor vehicle, and by her husband for loss of consortium. Upon disagreement of the jury, the court granted a motion of defendants for a directed verdict upon which it had theretofore reserved decision. Judgment for defendants reversed on the law and a new trial granted, with costs to abide the event. It cannot be said that the proof adduced on behalf of plaintiffs, if accredited in its entirety, was insufficient to spell out actionable negligence. An issue of fact was presented depending upon credibility of witnesses and, therefore, there could be no direction of a verdict. (Gallery v. Lyons, 292 R Y. 15; Sadowski v. Long Island B. B. Co., 292 R Y. 448; Blum v. Fresh Grown Preserve Corp., 292 R Y. 241.) The lack of power to direct a verdict is to be distinguished from the power of the trial court to set aside a verdict as against the weight of the credible evidence and to grant a new trial. (Blum v. Fresh Grown Preserve Corp., supra, p. 245; McDonald v. Metropolitan St. By. Co., 167 N. Y. 66.) Hagarty, Acting P. J., Carswell, Johnston, Adel and Nolan, JJ., concur.

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Action by plaintiff wife to recover damages for personal injuries sustained as the result of the alleged negligent operation of a motor vehicle, and by her husband for loss of consortium. Upon disagreement of the jury, the court granted a motion of defendants for a directed verdict upon which it had theretofore reserved decision. Judgment for defendants reversed on the law and a new trial granted, with costs to abide the event. It cannot be said that the proof adduced on behalf of plaintiffs, if accredited in its entirety, was insufficient to spell out actionable negligence. An issue of fact was presented depending upon credibility of witnesses and, therefore, there could be no direction of a verdict. (Gallery v. Lyons, 292 R Y. 15; Sadowski v. Long Island B. B. Co., 292 R Y. 448; Blum v. Fresh Grown Preserve Corp., 292 R Y. 241.) The lack of power to direct a verdict is to be distinguished from the power of the trial court to set aside a verdict as against the weight of the credible evidence and to grant a new trial. (Blum v. Fresh Grown Preserve Corp., supra, p. 245; McDonald v. Metropolitan St. By. Co., 167 N. Y. 66.) Hagarty, Acting P. J., Carswell, Johnston, Adel and Nolan, JJ., concur.

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Bluebook (online)

271 A.D.2d 899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kotcher-v-gilbert-nyappdiv-1946.

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