Opinion
Argued September 10, 1975
Decided October 23, 1975
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, DAVID F. LEE, JR., J.
Maurice P. O'Brien for Binghamton Amusement Co., Inc., and another, appellants.
Thomas F. O'Connor for Binghamton Enterprise, Inc., appellant.
Philip J. Kramer for Estate of Peter Canale and another, plaintiffs-respondents.
John F. Artman for Susan O. Trozze, plaintiff-respondent.
John M. Keeler for Columbia Gas of New York, Inc., defendant-respondent.
MEMORANDUM. The order of the Appellate Division should be affirmed, with costs. Given this court's restricted scope of review, when issues of fact have been resolved by affirmance at the Appellate Division, the findings are conclusive on this court, if there is evidence to support them (see, generally, Cohen and Karger, Powers of the New York Court of Appeals, pp 453-455). True, the proof of the cause of the fire rested on slender inference, and the proof of value of the Canale property was hardly inspiring of confidence, nevertheless there was some evidence on each issue, even if only barely enough, to withstand review by this court.
I dissent and vote to modify the order below by dismissing the complaints as to Binghamton Enterprise, Inc., Binghamton Amusement Co. and Curan, on so much of the dissenting opinion of Justice REYNOLDS at the Appellate Division as concluded (1) that the proof as to negligence, causal relationship and proximate cause was inadequate to support the verdicts against these defendants, and (2) that even if such liability could be found, neither the verdict making a 65%-10% apportionment between Binghamton Amusement Co. and Curan, its employee, nor the verdict against Miles' corporate employer, Binghamton Enterprise, Inc., could stand.
Chief Judge BREITEL and Judges GABRIELLI, JONES, WACHTLER and FUCHSBERG concur in memorandum; Judge JASEN dissents in part and votes to modify in a separate memorandum; Judge COOKE taking no part.
Order affirmed.