Toorock v. Delevan Smelting & Refining Works, Inc.

242 A.D. 705

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1934
• Status: Published

Opinion

Judgment reversed on the law and the facts and a new trial granted, with costs to the appellants to abide the event. The trial court by the charge and statements during the trial too plainly indicated to the jury its doubt of the justice of plaintiffs’ case. Plaintiff Ethel Jacobwitz did not verify the complaint or the first bill of particulars by which it was claimed she had a fractured leg. By an amended bill of particulars, which she did verify, and on the trial, she did not claim she had a fractured leg. The court charged that the claim in the complaint and the first bill of particulars was untruthful, and no reference was made to the second bill of particulars or plaintiff’s position on the trial. Plaintiff Ethel’s veracity was a question for the jury and not for the court. The court charged the jury that if the driver of defendant’s car was “ crowded ” defendant was absolved from liability. Something further was required of defendant’s driver to explain the fact that he had gone on the sidewalk and struck a post. In the interests of justice a new trial must be ordered. Lazansky, P. J., Young, Hagarty, Scudder and Davis, JJ., concur.