Morgenstern v. Dairymen's League Co-operative Ass'n.

253 A.D. 861, 1 N.Y.S.2d 565, 1938 N.Y. App. Div. LEXIS 8934

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1938
• Status: Published

Opinion

Appeal from an order of the Sullivan County Trial Term of the Supreme Court dated May 15, 1937, setting aside the verdict of the jury of no cause of action in favor of each defendant and granting a new trial. Plaintiff was a passenger in the automobile of the defendant Morgenstern and was injured in a collision between that automobile and a delivery truck owned by the defendant, Dairymen’s League Co-operative Association, Inc. This collision occurred at an intersection of two streets in the city of Middletown. The driver of each vehicle was sworn as a witness by the plaintiff and each established a cause of action for negligence against the other. Order affirmed, with costs. McNamee, Bliss and Heffernan, JJ., concur; Hill, P. J., dissents, and votes to reverse the order and to reinstate the verdict upon the ground that under the proof presented the jury could well have found that plaintiff failed to establish the negligence of either defendant by a fair preponderance of evidence. Rhodes, J., not voting.