McDermott v. Barker

20 A.D.2d 546, 245 N.Y.S.2d 135, 1963 N.Y. App. Div. LEXIS 2815

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1963
• Status: Published

Opinion

In an action to recover damages for injury to person and property and for loss of services and medical expenses, the plaintiffs appeal: (1) from a judgment of the Supreme Court, Nassau County, entered February 13, 1963 after trial upon a jury’s verdict in favor of the defendants Barker and the Incorporated Village of East Roekaway; (2) from the denial of plaintiffs’ oral motion to set aside such verdict and for a new trial; and (3) from an order of said court, dated January 29, 1963, which denied their motion for reargument of such oral motion. Judgment affirmed, with costs. Appeal from denial of plaintiffs’ oral motion and from the order of January 29, 1963 dismissed. No appeal lies from either of such dispositions, and in any event, in view of our affirmance of the judgment, such determinations are academic. Unlike the statement as to the manner of the happening of the accident considered in Williams v. Alexander (309 N. Y. 283, 287, 288), which was there held to have been erroneously received when offered pursuant to section 374-a of the former -Civil Practice Act, the statement in the present hospital record as to the manner in which the accident happened was introduced in evidence only after the doctor who had made the entry testified that he would not have done so if the information had been given to him by anyone other than the patient. Thus, the statement here was an admission and properly received as such; it was not received under said section 374-a. Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.