Opinion
October 28, 1932.
Appeal from Supreme Court of New York County.
Jay Leo Rothschild of counsel [ Edward Baruch, attorney], for the appellant.
George G. Lake, for the respondents.
Present — FINCH, P.J., McAVOY, MARTIN, O'MALLEY and TOWNLEY, JJ.
This is an action to recover damages for personal injuries by the wife and for loss of services by the husband. There was a sharp conflict of testimony as to whether any accident had in fact occurred and also as to the extent of plaintiff's injuries. The plaintiff's testimony on both of these issues was highly improbable. The court in its charge said: "I think there can be no doubt about the fact that Mrs. Schwartz was injured in some way, unless she is a perjurer, unless her daughters are perjurers, unless these young women who went there are perjurers and the doctor a perjurer. She certainly had some injuries unless these people have all come in here and perjured themselves." It was highly prejudicial to defendant for the court so plainly to indicate its opinion on the facts. The credibility of these witnesses should have been left to the jury without such comment.
The court also instructed the jury that there was evidence of permanent injury. The record fails to disclose any testimony to support this contention. Prejudice resulting to defendant from the instructions referred to requires a reversal of this judgment and a new trial.
The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.