Wulkan v. Kapp

264 A.D. 743, 34 N.Y.S.2d 431, 1942 N.Y. App. Div. LEXIS 4465

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 1942
• Status: Published

Opinion

In an action by plaintiff wife to recover for property damage, and by plaintiff husband to recover damages for personal injuries sustained when an automobile operated by him and owned by his wife was struck by an automobile operated by defendant, a verdict in plaintiff husband’s favor in an amount equal to the amount of his doctors’ bills was inadequate and was properly set aside by the trial court. When defendant was called as a witness by the plaintiffs, the rule which prohibited an attack on defendant’s general credibility did not prevent plaintiffs from having the jury pass on the truthfulness or accuracy of defendant’s testimony. (Carlisle v. Norris, 215 N. Y. 400.) In any event, the defendant, by failing to move for a dismissal of the complaint at the close of the entire ease, conceded that there was a jury question in respect of his negligence. (Behan v. Ivanhoe Co., 263 App. Div. 963.) Judgment, and order setting aside the verdict in favor of plaintiff Henry Wulkan as inadequate and granting other relief, in so far as appealed from, unanimously affirmed, with costs. Present — Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ.