Mullery v. Ro-Mill Construction Corp.

New York Court of Appeals

Mullery v. Ro-Mill Construction Corp.

429 N.E.2d 419, 54 N.Y.2d 888, 444 N.Y.S.2d 912, 1981 N.Y. LEXIS 3092

CourtNew York Court of Appeals

DecidedOctober 15, 1981

StatusPublished

Cited by3 cases

This text of 429 N.E.2d 419 (Mullery v. Ro-Mill Construction Corp.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mullery v. Ro-Mill Construction Corp., 429 N.E.2d 419, 54 N.Y.2d 888, 444 N.Y.S.2d 912, 1981 N.Y. LEXIS 3092 (N.Y. 1981).

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Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for review of the facts (CPLR 5613). Under the charge given by the trial court the jury was instructed to determine whether the decedent was so intoxicated as to be rendered incapable of understanding or appreciating the danger which confronted him. In view of this charge, to which no exception was taken, and on the evidence adduced at trial, it cannot be said, as a matter of law, that the decedent was contributorily negligent.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for review of the facts (CPLR 5613). Under the charge given by the trial court the jury was instructed to determine whether the decedent was so intoxicated as to be rendered incapable of understanding or appreciating the danger which confronted him. In view of this charge, to which no exception was taken, and on the evidence adduced at trial, it cannot be said, as a matter of law, that the decedent was contributorily negligent.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.

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429 N.E.2d 419, 54 N.Y.2d 888, 444 N.Y.S.2d 912, 1981 N.Y. LEXIS 3092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullery-v-ro-mill-construction-corp-ny-1981.

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