Storms v. City of Fulton

Appellate Division of the Supreme Court of New York

Storms v. City of Fulton

263 A.D. 927, 32 N.Y.S.2d 395, 1942 N.Y. App. Div. LEXIS 7396

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

DecidedJanuary 7, 1942

StatusPublished

Cited by6 cases

This text of 263 A.D. 927 (Storms v. City of Fulton) 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

Storms v. City of Fulton, 263 A.D. 927, 32 N.Y.S.2d 395, 1942 N.Y. App. Div. LEXIS 7396 (N.Y. Ct. App. 1942).

Pincite

Opinion

Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: Upon our examination of the record, we conclude that the finding of negligence is against the weight of evidence. Aside from the testimony of plaintiff’s witness that, in his opinion, more than the one playground attendant assigned to supervise this playground was required for adequate supervision thereof, it is doubtful whether plaintiff adduced sufficient evidence to make out a prima facie case (Fritz v. City of Buffalo, 277 N. Y. 710; Curdo v. City of New York, 275 id. 20; Peterson v. City of New York, 267 id. 204), and the opinion evidence was incompetent, (Lowery v. Syracuse University, 258 App. Div. 844.) Furthermore, the court’s charge to the jury failed adequately to define the issues, Although no objec[928]*928tions were made to either the incompetent evidence or to the charge as made and no requests to charge were made by defendant’s counsel, we think that, under the circumstances, the interests of justice will be best served by granting a new trial. All concur, Cunningham and Harris, JJ., in result only. (The judgment is for plaintiff in a negligence action.) Present — Crosby, P. J., Cunningham, Taylor, Harris and MeCurn, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: Upon our examination of the record, we conclude that the finding of negligence is against the weight of evidence. Aside from the testimony of plaintiff’s witness that, in his opinion, more than the one playground attendant assigned to supervise this playground was required for adequate supervision thereof, it is doubtful whether plaintiff adduced sufficient evidence to make out a prima facie case (Fritz v. City of Buffalo, 277 N. Y. 710; Curdo v. City of New York, 275 id. 20; Peterson v. City of New York, 267 id. 204), and the opinion evidence was incompetent, (Lowery v. Syracuse University, 258 App. Div. 844.) Furthermore, the court’s charge to the jury failed adequately to define the issues, Although no objec[928]*928tions were made to either the incompetent evidence or to the charge as made and no requests to charge were made by defendant’s counsel, we think that, under the circumstances, the interests of justice will be best served by granting a new trial. All concur, Cunningham and Harris, JJ., in result only. (The judgment is for plaintiff in a negligence action.) Present — Crosby, P. J., Cunningham, Taylor, Harris and MeCurn, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

263 A.D. 927, 32 N.Y.S.2d 395, 1942 N.Y. App. Div. LEXIS 7396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/storms-v-city-of-fulton-nyappdiv-1942.

Opinion

Related

Cite This Page — Counsel Stack