Fitzpatrick v. the City of New York

Full title: KATHERINE FITZPATRICK, Respondent, v. THE CITY OF NEW YORK, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 1, 1928

223 App. Div. 740 (N.Y. App. Div. 1928)

Opinion

March, 1928.

Appeal from Supreme Court, New York County.

PER CURIAM.

We are of the opinion that the judgment is against the weight of the credible evidence; that competent evidence, including an admission made on a former trial by plaintiff's attorney,^_ was excluded, and that the charge of the court failed to properly present for consideration of the jury the questions of fact involved. The attorney for plaintiff was permitted to inform the jury that the city could have vouched in the owner of the premises in front of which the accident occurred, and that the owner would have been directly responsible to the city of New York. The property owner would not be liable under the circumstances here disclosed. In view of the fact that there must be a new trial it is unnecessary to further discuss the grounds for reversal for they are unlikely to arise on another trial. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

_ See 220 App. Div. 320. — [REP.

Present — Dowling, P.J., Merrell, Martin, O'Malley and Proskauer, JJ. Judgment reversed and a new trial ordered, with costs to appellant to abide the event.