McNabb v. Select Operating Corp.

Appellate Division of the Supreme Court of New York

McNabb v. Select Operating Corp.

4 A.D.2d 1016, 169 N.Y.S.2d 424, 1957 N.Y. App. Div. LEXIS 3637

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

DecidedDecember 10, 1957

StatusPublished

This text of 4 A.D.2d 1016 (McNabb v. Select Operating Corp.) 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

McNabb v. Select Operating Corp., 4 A.D.2d 1016, 169 N.Y.S.2d 424, 1957 N.Y. App. Div. LEXIS 3637 (N.Y. Ct. App. 1957).

Pincite

Opinion

Judgment affirmed, with costs to the respondent. Concur — Breitel, J. P., Rabin and Valente, JJ.; Frank and McNally, JJ., dissent in a memorandum by McNally, J.: A reading of this record makes it apparent that the case was tried on the theory of defective construction and design. In fact, the following appears at the conclusion of the court’s charge: “ The Court: By agreement with counsel, a further instruction is being made. ‘There is no claim here by the plaintiff that the stairs in the aisle were in disrepair, but the plaintiff’s contention, and I charge you on the subject of the law, is that the area where the accident occurred was constructed in an inherently dangerous manner’.” Although the narrow issue [1017]*1017was thus submitted to the jury, by consent of the litigants, there is no proof in the record of defective construction or design. Ordinarily, such a state of facts would require a reversal and dismissal of the complaint. However, in this case, evidence of defective construction and design was not admitted when offered. Under the circumstances, the judgment should be reversed and a new trial ordered.

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Judgment affirmed, with costs to the respondent. Concur — Breitel, J. P., Rabin and Valente, JJ.; Frank and McNally, JJ., dissent in a memorandum by McNally, J.: A reading of this record makes it apparent that the case was tried on the theory of defective construction and design. In fact, the following appears at the conclusion of the court’s charge: “ The Court: By agreement with counsel, a further instruction is being made. ‘There is no claim here by the plaintiff that the stairs in the aisle were in disrepair, but the plaintiff’s contention, and I charge you on the subject of the law, is that the area where the accident occurred was constructed in an inherently dangerous manner’.” Although the narrow issue [1017]*1017was thus submitted to the jury, by consent of the litigants, there is no proof in the record of defective construction or design. Ordinarily, such a state of facts would require a reversal and dismissal of the complaint. However, in this case, evidence of defective construction and design was not admitted when offered. Under the circumstances, the judgment should be reversed and a new trial ordered.

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Bluebook (online)

4 A.D.2d 1016, 169 N.Y.S.2d 424, 1957 N.Y. App. Div. LEXIS 3637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnabb-v-select-operating-corp-nyappdiv-1957.