Smith v. D'Esposito

249 A.D. 649, 291 N.Y.S. 372, 1936 N.Y. App. Div. LEXIS 5390

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1936
• Status: Published

Opinion

Action by wife and husband to recover for personal injuries and loss of services as a result of the wife’s falling on a walk leading to the side entrance to defendant’s premises. Judgment in favor of defendant, order denying motion for a new trial on the ground of newly-discovered evidence and order denying resettlement of that order unanimously affirmed, with costs. Appeal from decision denying motion to set aside the verdict and for a new trial on the ground that the verdict is contrary to law and contrary to the evidence dismissed. An appeal does not lie from a decision. The questions of fact as to whether the walk leading to the side entrance was covered with ashes, whether the front entrance was covered with ice, and whether plaintiff Grayce M. S. Smith fell or slipped on the walk, or on adjoining property, and the question of contributory negligence on the part of that plaintiff, were all fairly submitted, and having been resolved in favor of defendant, in our opinion the verdict should not be disturbed. On the motion for a new trial on newly-discovered evidence, the plaintiffs offered no newly-discovered evidence. Lazansky, P. J., Davis, Johnston and Adel,. JJ., concur; Carswell, J., concurs in result.