Levy v. Reilly

Appellate Division of the Supreme Court of New York

Levy v. Reilly

18 A.D.2d 632, 234 N.Y.S.2d 1021, 1962 N.Y. App. Div. LEXIS 6458

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

DecidedDecember 11, 1962

StatusPublished

Cited by1 cases

This text of 18 A.D.2d 632 (Levy v. Reilly) 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

Levy v. Reilly, 18 A.D.2d 632, 234 N.Y.S.2d 1021, 1962 N.Y. App. Div. LEXIS 6458 (N.Y. Ct. App. 1962).

Pincite

Opinion

Judgment in favor of defendant dismissing the complaint after a non jury trial, unanimously reversed, on the law and the facts and in the exercise of discretion, and a new trial ordered, with costs to appellant to abide the event. The action was one to recover damages for injury to person and property resulting from an intersection collision between two cars owned and operated by plaintiff and defendant, respectively. Substantially the issue on the trial resolved itself into one of credibility of the parties in their versions of the accident. Ordinarily, the decision of the trial court on the matter of the credibility of witnesses will be given the greatest weight. (Amend v. Hurley, 293 N. Y. 587, 594; Smith v. Smith, 273 N. Y. 380, 383; Boyd v. Boyd, 252 N. Y. 422, 429.) However, in this ease the record reveals such interference and interruptions in the examination of witnesses by the trial court, and the injection of intemperate remarks — perhaps provoked by the parties — that plaintiff was, in our opinion, deprived of a fair trial and an unprejudiced consideration of the case. Although the testimony of plaintiff regarding his injuries properly induced the trial court’s disbelief, and evidently prompted a rejection of his entire testimony, there was equally incredible evidence by the defendant regarding the manner of the happening of. the accident — if the nature of the damage to plaintiff’s vehicle is considered. But palpable falsity as to plaintiff’s claim of injuries did not necessarily demand the discard of credible evidence as to how the collision occurred. While under subdivision 2 of section 584 of the Civil Practice Act this court, on an appeal from a judgment rendered in an action tried by the court without a jury, should, so far as practicable, grant the motion for judgment which the court below ought to have granted. (Bruno v. Kosnac, 13 A D 2d 650.) The state of the record herein does not lend itself to this procedure. (Pordy v. Scot Serv. Co., 15 A D 2d 911.) A new trial is required in the interests of justice so that the issues may properly be explored without the injection of the extraneous circumstances hereinabove referred to. Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Judgment in favor of defendant dismissing the complaint after a non jury trial, unanimously reversed, on the law and the facts and in the exercise of discretion, and a new trial ordered, with costs to appellant to abide the event. The action was one to recover damages for injury to person and property resulting from an intersection collision between two cars owned and operated by plaintiff and defendant, respectively. Substantially the issue on the trial resolved itself into one of credibility of the parties in their versions of the accident. Ordinarily, the decision of the trial court on the matter of the credibility of witnesses will be given the greatest weight. (Amend v. Hurley, 293 N. Y. 587, 594; Smith v. Smith, 273 N. Y. 380, 383; Boyd v. Boyd, 252 N. Y. 422, 429.) However, in this ease the record reveals such interference and interruptions in the examination of witnesses by the trial court, and the injection of intemperate remarks — perhaps provoked by the parties — that plaintiff was, in our opinion, deprived of a fair trial and an unprejudiced consideration of the case. Although the testimony of plaintiff regarding his injuries properly induced the trial court’s disbelief, and evidently prompted a rejection of his entire testimony, there was equally incredible evidence by the defendant regarding the manner of the happening of. the accident — if the nature of the damage to plaintiff’s vehicle is considered. But palpable falsity as to plaintiff’s claim of injuries did not necessarily demand the discard of credible evidence as to how the collision occurred. While under subdivision 2 of section 584 of the Civil Practice Act this court, on an appeal from a judgment rendered in an action tried by the court without a jury, should, so far as practicable, grant the motion for judgment which the court below ought to have granted. (Bruno v. Kosnac, 13 A D 2d 650.) The state of the record herein does not lend itself to this procedure. (Pordy v. Scot Serv. Co., 15 A D 2d 911.) A new trial is required in the interests of justice so that the issues may properly be explored without the injection of the extraneous circumstances hereinabove referred to. Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

18 A.D.2d 632, 234 N.Y.S.2d 1021, 1962 N.Y. App. Div. LEXIS 6458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levy-v-reilly-nyappdiv-1962.

Opinion

Related

Cite This Page — Counsel Stack