Mordoh v. City of New York

270 A.D. 896, 60 N.Y.S.2d 771, 1946 N.Y. App. Div. LEXIS 4535

Opinion

In an action by the infant plaintiff to recover damages for personal injuries, and by his father for expenses and loss of services, the complaint was dismissed by the court when the plaintiffs conditionally rested. Judgment reversed on the law and in the interest of justice, and a new trial granted, with costs to abide the event. The trial court erred in restricting the examination of the witness, Duffy, as shown at folios 123-127. When plaintiffs conditionally rested, it was with the reasonable assumption that they would have an opportunity to recall Duffy and to' call the police officer before the case was concluded. The dismissal of the complaint upon motion of defendant immediately after the plaintiffs so conditionally rested, and without affording plaintiffs an opportunity to produce such witnesses, who were employees of the defendant, deprived the plaintiffs of the benefit of their testimony. Lewis, P. J., Hagarty, Adel, Aldrich and Nolan, JJ., concur.