Opinion
February 1, 1971
In an assault action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, as resettled on December 10, 1969, in favor of defendant City of New York upon a jury verdict after trial on the issue of liability only. Judgment reversed, in the exercise of discretion, and new trial ordered on the combined issues of liability and damages, with costs to abide the event. In our opinion, under the circumstances of this case, the issue of liability, insofar as it involved the question of the use of excessive force by the police officer, accepted by the trial court and the litigants as a question in the case, and the issue of the injuries sustained and attributable to such excessive force, were inseparable. In that perspective, the extent of such injuries constituted admissible evidence insofar as it was probative of the use of excessive force and the exclusion of such evidence was tantamount to a denial of a fair trial to plaintiff ( Gasoline Prods. Co. v. Champlin Co., 283 U.S. 494, 500). Accordingly, it is our view that a departure from the authorized and accepted practice of separately trying issues of liability and damages was warranted and that one trial of these combined issues is indicated in the proper exercise of discretion (see Culley v. City of New York, 25 A.D.2d 519). In arriving at this conclusion we note with approval the commendable candor and sense of fairness displayed by the respondent in agreeing with appellant's position on this appeal in the area above noted. Munder, Acting P.J., Martuscello, Shapiro, Christ and Benjamin, JJ., concur.