Van Vooren v. Cook

277 A.D.2d 837

Opinion

Matter dismissed, without costs. Memorandum: The order of the Trial Term has referred a question of admissibility of evidence to this court after having discharged the jury and effected a mistrial of the action. Such question was one for the trial court in the first instance. In the absence of a judgment, section 550 of the Civil Practice Act is not authority for the action taken. (See Fine v. Cummins, 260 App. Div. 569, and Syracuse Grade Crossing Comm. v. Wellin Oil Co., 267 App. Div. 21.) All concur. (Review of question of admission of evidence in an action against an incompetent, referred to the Appellate Division for determination by order of Ontario Trial Term, Warner, J.) Present — Taylor, P. J., Love, Vaughan, Kimball and Piper, JJ.