Mulero v. Great Gee Furniture Corp.

Appellate Division of the Supreme Court of New York

Mulero v. Great Gee Furniture Corp.

19 A.D.2d 700, 241 N.Y.S.2d 27, 1963 N.Y. App. Div. LEXIS 3369

Appellate Division of the Supreme Court of the State of New York·Decided July 2, 1963·Published

Opinion

Judgment for defendant unanimously reversed, on the law and the facts, and a new trial ordered, without costs. Although a verdict for the defendant would be consistent with the record, the court’s -instructions to the jury were so inadequate as to preclude a fair consideration of the factual problem. (Molnar v. Slattery Contr. Co., 8 A D 2d 95, 100; Fox v. Hindus, 268 App. Div. 916.) At four-separate points in the charge the court instructed the jury that plaintiff administratrix was required to show absence of contributory negligence of the infant decedent; and in the one point at which the court placed with the defendant the burden on this issue, the instruction vías coupled with the proviso that “ on the whole ease ” plaintiff has the burden of- proof “ in the manner in which I hare outlined it ” to establish “ all of the matters which I have already mentioned.” Concur — Botein, P. J., Breitel, Rabin, Eager and Bergan, JJ.

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Judgment for defendant unanimously reversed, on the law and the facts, and a new trial ordered, without costs. Although a verdict for the defendant would be consistent with the record, the court’s -instructions to the jury were so inadequate as to preclude a fair consideration of the factual problem. (Molnar v. Slattery Contr. Co., 8 A D 2d 95, 100; Fox v. Hindus, 268 App. Div. 916.) At four-separate points in the charge the court instructed the jury that plaintiff administratrix was required to show absence of contributory negligence of the infant decedent; and in the one point at which the court placed with the defendant the burden on this issue, the instruction vías coupled with the proviso that “ on the whole ease ” plaintiff has the burden of- proof “ in the manner in which I hare outlined it ” to establish “ all of the matters which I have already mentioned.” Concur — Botein, P. J., Breitel, Rabin, Eager and Bergan, JJ.

Mulero v. Great Gee Furniture Corp., 19 A.D.2d 700, 241 N.Y.S.2d 27, 1963 N.Y. App. Div. LEXIS 3369 (N.Y. Ct. App. 1963).

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Opinion

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