Malcolm v. Vedder

267 A.D. 804, 46 N.Y.S.2d 239, 1943 N.Y. App. Div. LEXIS 6295

Opinion

Order reversed on the law, with costs and verdict reinstated. Memorandum: We find no evidence in the record which would have supported a finding by the jury that the defendant violated the provisions of subdivision 5 of section 81 of the Vehicle and Traffic Law. The charge was adequate and the court’s refusal to grant plaintiff’s request to charge subdivision 5 of section 81 of the Vehicle and Traffic Law was not reversible error. We have examined the evidence, and do not think that the order should be sustained on the ground that the verdict is against the weight of evidence. All concur, except Crosby, P. J., and Cunningham, J., who dissent and vote for affirmance in the following memorandum: The error in the charge, if any, was harmless, but the order can be sustained on the ground that the verdict was against the weight of evidence. (Waldron v. City of Utica, 228 App. Div. 37, 40.) (The order sets aside the verdict of a jury in favor of defendant for no cause of action and grants a new trial in an automobile negligence action.) Present — Crosby, P. J., Cunningham, Dow-ling, Harris and MeCurn, JJ.