Rarrick v. McMillan

181 A.D. 966

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1917
• Status: Published

Opinion

Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Held, that while there was ample evidence to justify the verdict upon the ground of contributory negligence, we are unable to say with certainty that the jury based their verdict upon that ground, and as the court erred in receiving the declarations of the deceased that he was not married to the mother of the plaintiff, and his declarations concerning his association with and conduct toward other women, we think that a new trial should be granted. All concurred, except Merrell, J., who dissented and voted for affirmance.