Schwartz v. Ebenstein

Appellate Division of the Supreme Court of New York

Schwartz v. Ebenstein

236 A.D. 420, 260 N.Y.S. 75, 1932 N.Y. App. Div. LEXIS 5984

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

DecidedOctober 28, 1932

StatusPublished

Cited by1 cases

This text of 236 A.D. 420 (Schwartz v. Ebenstein) 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

Schwartz v. Ebenstein, 236 A.D. 420, 260 N.Y.S. 75, 1932 N.Y. App. Div. LEXIS 5984 (N.Y. Ct. App. 1932).

Pincite

Opinion

Per Curiam.

This is an action to recover damages for personal injuries by the wife and for loss of services by the husband. There was a sharp conflict of testimony as to whether any accident had in fact occurred and also as to the extent of plaintiff’s injuries. The plaintiff’s testimony on both of these issues was highly improbable. The court in its charge said: “ I think there can be no doubt about the fact that Mrs. Schwartz was injured in some way, unless she is a perjurer, unless her daughters are perjurers, unless these young women who went there are perjurers and the doctor a perjurer. She certainly had some injuries unless these people have all come in here and perjured themselves.” It was highly prejudicial to defendant for the court so plainly to indicate its opinion on the facts. The credibility of these witnesses should have been left to the jury without such comment.

The court also instructed the jury that there was evidence of permanent injury. The record fails to disclose any testimony to support this contention. Prejudice resulting to defendant from the instructions referred to requires a reversal of this judgment and a new trial.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present — Finch, P. J., McAvoy, Martin, O’Malley and Townley, JJ.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.

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Per Curiam.

This is an action to recover damages for personal injuries by the wife and for loss of services by the husband. There was a sharp conflict of testimony as to whether any accident had in fact occurred and also as to the extent of plaintiff’s injuries. The plaintiff’s testimony on both of these issues was highly improbable. The court in its charge said: “ I think there can be no doubt about the fact that Mrs. Schwartz was injured in some way, unless she is a perjurer, unless her daughters are perjurers, unless these young women who went there are perjurers and the doctor a perjurer. She certainly had some injuries unless these people have all come in here and perjured themselves.” It was highly prejudicial to defendant for the court so plainly to indicate its opinion on the facts. The credibility of these witnesses should have been left to the jury without such comment.

The court also instructed the jury that there was evidence of permanent injury. The record fails to disclose any testimony to support this contention. Prejudice resulting to defendant from the instructions referred to requires a reversal of this judgment and a new trial.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present — Finch, P. J., McAvoy, Martin, O’Malley and Townley, JJ.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.

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Bluebook (online)

236 A.D. 420, 260 N.Y.S. 75, 1932 N.Y. App. Div. LEXIS 5984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-ebenstein-nyappdiv-1932.

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