Parker v. Weisner

Appellate Division of the Supreme Court of New York

Parker v. Weisner

65 A.D.2d 543, 409 N.Y.S.2d 510, 1978 N.Y. App. Div. LEXIS 13158

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 31, 1978

StatusPublished

This text of 65 A.D.2d 543 (Parker v. Weisner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Parker v. Weisner, 65 A.D.2d 543, 409 N.Y.S.2d 510, 1978 N.Y. App. Div. LEXIS 13158 (N.Y. Ct. App. 1978).

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Opinion

Judgment, Supreme Court, Bronx County, entered on March 11, 1977, in defendants’ favor, unanimously reversed, on the law, and vacated and the matter remanded for a new trial, with $75 costs and disbursements of this appeal to abide the event. On the facts adduced at trial there was no evidence of contributory negligence and it was error to charge the jury on that subject. The infant plaintiff’s presence in the garden area, near the fountain, the finial of which, it is contended, was caused to fall and strike the infant, "merely furnished the condition or occasion for the occurrence of the event rather than one of its causes” (Sheehan v City of New York, 40 NY2d 496, 503; cf. Rivera v City of New York, 11 NY2d 856). Since the verdict was a general [544]*544one, there is no way of knowing what part the charge on contributory negligence played in the jury’s verdict. Hence, the error was prejudicial and the verdict cannot stand. (See Eisenberg v Green, 33 AD2d 756; see, also, Stagnitti v Newberry, 1 AD2d 735.) Concur—Murphy, P. J., Fein, Lane and Sullivan, JJ.

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Judgment, Supreme Court, Bronx County, entered on March 11, 1977, in defendants’ favor, unanimously reversed, on the law, and vacated and the matter remanded for a new trial, with $75 costs and disbursements of this appeal to abide the event. On the facts adduced at trial there was no evidence of contributory negligence and it was error to charge the jury on that subject. The infant plaintiff’s presence in the garden area, near the fountain, the finial of which, it is contended, was caused to fall and strike the infant, "merely furnished the condition or occasion for the occurrence of the event rather than one of its causes” (Sheehan v City of New York, 40 NY2d 496, 503; cf. Rivera v City of New York, 11 NY2d 856). Since the verdict was a general [544]*544one, there is no way of knowing what part the charge on contributory negligence played in the jury’s verdict. Hence, the error was prejudicial and the verdict cannot stand. (See Eisenberg v Green, 33 AD2d 756; see, also, Stagnitti v Newberry, 1 AD2d 735.) Concur—Murphy, P. J., Fein, Lane and Sullivan, JJ.

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Bluebook (online)

65 A.D.2d 543, 409 N.Y.S.2d 510, 1978 N.Y. App. Div. LEXIS 13158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-weisner-nyappdiv-1978.

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