Varano v. Cam Construction Co.

Full title: ENRICO VARANO, Respondent, v. CAM CONSTRUCTION CO., INC., Appellant, et…

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

Date published: Dec 19, 1966

27 A.D.2d 563 (N.Y. App. Div. 1966)

Opinion

December 19, 1966

Judgment of the Supreme Court, Kings County, dated March 9, 1966, affirmed insofar as appealed from, with costs. No opinion.

Ughetta, Brennan, Hopkins and Benjamin, JJ., concur; Beldock, P.J., dissentsPage 564 and votes to reverse the judgment insofar as appealed from and to grant a new trial as against appellant, with the following memorandum:

In my opinion, the present record discloses that plaintiff failed to prove, by a fair preponderance of the circumstantial evidence adduced, the theory of liability upon which this action was tried and submitted to the jury. The appellant's employees (bricklayers) finished their work and left the premises at least 3 or 4 days prior to the accident and the jury's implicit finding that the brick which struck the plaintiff was left by appellant's employees could only be based upon the impermissible rationalization of inference upon inference ( McCabe v. Queensboro Farm Prods., 21 A.D.2d 675).