Underhill v. Slutzky

Appellate Division of the Supreme Court of New York

Underhill v. Slutzky

260 A.D. 882, 22 N.Y.S.2d 997, 1940 N.Y. App. Div. LEXIS 5212

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

DecidedOctober 21, 1940

StatusPublished

Cited by2 cases

This text of 260 A.D. 882 (Underhill v. Slutzky) 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

Underhill v. Slutzky, 260 A.D. 882, 22 N.Y.S.2d 997, 1940 N.Y. App. Div. LEXIS 5212 (N.Y. Ct. App. 1940).

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Opinion

Appeals by plaintiff in an action for damages for personal injuries (a) from a judgment in favor of defendant, entered on a jury verdict, and (b) from an order denying plaintiff’s motion to set aside the verdict and for a new trial. Judgment and order unanimously affirmed, with costs. The prior inconsistent written statement of one of the witnesses was properly received in evidence to impeach him (Civ. Prac. Act, § 343-a) and was competent for that purpose only. There was an erroneous instruction by the court in relation to the statement; plaintiff did not except to that instruction but in effect expressly endorsed the charge, which became the law [883]*883of the case. (Cooper v. Brooklyn & Queens T. Corp. 249 App. Div. 774; Pettis v. New York State Electric & Gas Corp., Id. 487, 490; Halpin v. New York Railways Corp., 250 id. 613, 615; and vide Fitzpatrick v. International Ry. Co., 252 N. Y. 127, 141.) A party may avoid the foregoing rule only by showing that he did not have a fair trial. (Haefeli v. Woodrich Engineering Co., 255 N. Y. 442, 445, 446; Muldoon v. Dock Contractor Co., 199 App. Div. 733.) The record here does not disclose that plaintiff did not have a fair trial, but quite the contrary. The alleged error complained of in the charge did not affect a substantial right, and must be disregarded. (Civ. Prae. Act, § 106.) Present — Lazansky, P. J.. Carswell, Johnston, Taylor and Close, JJ.

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Appeals by plaintiff in an action for damages for personal injuries (a) from a judgment in favor of defendant, entered on a jury verdict, and (b) from an order denying plaintiff’s motion to set aside the verdict and for a new trial. Judgment and order unanimously affirmed, with costs. The prior inconsistent written statement of one of the witnesses was properly received in evidence to impeach him (Civ. Prac. Act, § 343-a) and was competent for that purpose only. There was an erroneous instruction by the court in relation to the statement; plaintiff did not except to that instruction but in effect expressly endorsed the charge, which became the law [883]*883of the case. (Cooper v. Brooklyn & Queens T. Corp. 249 App. Div. 774; Pettis v. New York State Electric & Gas Corp., Id. 487, 490; Halpin v. New York Railways Corp., 250 id. 613, 615; and vide Fitzpatrick v. International Ry. Co., 252 N. Y. 127, 141.) A party may avoid the foregoing rule only by showing that he did not have a fair trial. (Haefeli v. Woodrich Engineering Co., 255 N. Y. 442, 445, 446; Muldoon v. Dock Contractor Co., 199 App. Div. 733.) The record here does not disclose that plaintiff did not have a fair trial, but quite the contrary. The alleged error complained of in the charge did not affect a substantial right, and must be disregarded. (Civ. Prae. Act, § 106.) Present — Lazansky, P. J.. Carswell, Johnston, Taylor and Close, JJ.

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Bluebook (online)

260 A.D. 882, 22 N.Y.S.2d 997, 1940 N.Y. App. Div. LEXIS 5212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/underhill-v-slutzky-nyappdiv-1940.

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