Pierakos v. Brooklyn & Queens Transit Corp.

255 A.D. 1010, 1938 N.Y. App. Div. LEXIS 6254

Opinion

— In an action to recover damages for death by wrongful act, neglect or default, the plaintiff had a verdict upon which judgment was entered. The verdict was based upon the testimony of one claiming to be an eye witness, and without this testimony the plaintiff probably could not have made a prima facie case. In an investigation -later undertaken by the rackets bureau of the district attorney’s office this witness testified that he did not see the accident. It is not necessary to enter into a discussion of the facts. It is sufficient to say that, as the case stands, the verdict is against the weight of evidence, and that the interests of justice require a new trial. Order denying defendant’s motion to set aside the verdict and the judgment entered thereon, and for a new trial upon the ground of newly-discovered evidence, reversed on the law and the facts and motion granted, costs to abide the event. Lazansky, P. J., Davis, Adel, Taylor and Close, JJ., concur.