Morales v. Olivero

23 A.D.2d 554, 256 N.Y.S.2d 628, 1965 N.Y. App. Div. LEXIS 4839

Opinion

Judgment entered February 4, 1964, dismissing the complaint at the close of the entire case, unanimously reversed, on the law and on the facts, and a new trial granted, with $50 costs to abide the event, oh the ground that the judgment is against the weight of the evidence. Plaintiff was a passenger in a motor vehicle and defendant the operator. On a clear night the motor vehicle struck an abutment with blinker lights at the 52nd Street exit ramp of the West Side Highway, New York City. That the motor vehicle may have been improperly registered was irrelevant on the issue of negligence although admissible on credibility. On an appeal from a judgment rendered in an action tried by the court without a jury, this court should, so far as practicable, grant the motion for judgment which the trial court 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. A new trial is required in the interests of justice so that the issue of negligence may be properly explored. (Levy v. Beilly, 18 A D 2d 632; Pordy v. Scot Bern. Go., 15 A D 2d 911; Power v. Falk, 15 A D 2d 216; Victor Catering Go., v. Nasca, 8 A D 2d 5; 7 Weinstein-Korn-Miller, N. Y. Civ. Prae., par. 5522.05.) Concur— Breitel, J. P., McNally, Stevens, Eager and Staley, JJ.