Opinion
Argued September 14, 1981
Decided October 15, 1981
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOSEPH DI FEDE, J.
Emilio Nunez and Pamela Anagnos Liapakis for appellant.
William F. McNulty, Harold M. Foster and Anthony J. McNulty for respondents.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for review of the facts (CPLR 5613). Under the charge given by the trial court the jury was instructed to determine whether the decedent was so intoxicated as to be rendered incapable of understanding or appreciating the danger which confronted him. In view of this charge, to which no exception was taken, and on the evidence adduced at trial, it cannot be said, as a matter of law, that the decedent was contributorily negligent.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.