Moses v. Litman

24 A.D.2d 867, 264 N.Y.S.2d 360, 1965 N.Y. App. Div. LEXIS 3096

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1965
• Status: Published

Opinion

—In a wrongful death action, the plaintiff appeals from a judgment of the Supreme Court, Nassau County, in favor of defendant Litman, entered May 11, 1964 upon a jury verdict in favor of defendant Litman, and in favor of defendant Gibson’s Fish & Chips, Inc., upon the court’s dismissal of the complaint as to it. As to defendant Gibson’s Fish & Chips, Inc., the judgment is affirmed, without costs. As to defendant Litman, the judgment is reversed on the law, without costs, and new trial granted; and action as to said defendant severed. The questions of fact have not been considered. With respect to defendant Litman, we believe it was prejudicial error for the trial court to refuse to charge the rule of Noseworthy v. City of New York (298 N. Y. 76; see, also, Swensson v. New York, Albany Despatch Co., 309 N. Y. 497; Andersen v. Bee Line, 1 N Y 2d 169). With respect to defendant Gibson’s Fish & Chips, Inc., there was no proof to connect it with the death of plaintiff’s decedent or to make it liable therefor; nor does plaintiff’s brief urge any grounds for reversal or a new trial as to said defendant. Christ, Acting P. J., Brennan, Hill, Rabin and Benjamin, JJ., concur.