McHenry v. Long Island Rail Road Co.

21 A.D.2d 833, 252 N.Y.S.2d 298, 1964 N.Y. App. Div. LEXIS 3409

Opinion

In a negligence action by a wife and her husband to recover damages for personal injury, loss of services, etc., the defendant appeals: (a) from a judgment of the Supreme Court, Nassau County, entered January 8, 1964 after trial, upon a jury’s verdict in favor of the plaintiffs; and (b) from an order of said court, dated December 30, 1963, which denied defendant’s motion to set aside the verdict (CPLR 4404). Judgment and order affirmed, with one bill of costs. No opinion. Kleinfeld, Brennan and Hopkins, JJ., concur; Ughetta, Acting P. J., and Hill, J., dissent and vote to reverse the judgment and to dismiss the complaint, with the following memorandum: In our opinion, plaintiffs failed to establish a prima facie case; they failed to show freedom from contributory negligence or actionable negligence on the part of the defendant (cf. White v. Lehigh Val. R. R. Co., 220 N. Y. 131; Goldstein v. New York Cent. R. R. Co., 19 A D 2d 835).