Opinion
December, 1930.
Appeal from Supreme Court, Erie County.
Present — Sears, P.J., Crouch, Taylor, Edgcomb and Thompson, JJ. Judgment reversed on the facts and a new trial granted, with costs to the appellant to abide the event.
The learned trial court charged the jury that the plaintiff failed to co-operate and render assistance if he went to Kauffman, the attorney for the plaintiff (in the former action), and made a voluntary statement to him of the transaction, and if such were the circumstances, could not recover. This, therefore, became the law of the case. We are of the opinion, however, that a finding to the effect that the plaintiff did not go to Kauffman or make a voluntary statement to him of the transaction was against the weight of the evidence, due consideration being given to the plaintiff's signed statement of January 6, 1930. A reversal, therefore, is necessary even though we think that the circumstance of going to Kauffman and giving him a voluntary statement of the transaction did not necessarily import a failure to co-operate and render assistance, provided the statement was in all respects conscientiously made. All concur.