Opinion
April 27, 1967
In view of our determination in No. 11442 dismissing the action, the judgment entered June 13, 1966 is vacated on the law, with $50 costs and disbursements to the defendant. We add, that if the action were not dismissed, four of the members of this court would have voted to reverse the judgment in favor of the plaintiff and order a new trial, while one member of the court would have voted to dismiss on the ground that the malpractice of the defendant was not proven. The trial court's findings of malpractice were generally against the weight of the credible evidence. In addition, the trial court erred in excluding material hospital records which could have disclosed a basis other than defendant's alleged malpractice, for plaintiff's blindness. The exclusion of the records of Goshen Hospital, indicating that both eyes of the plaintiff were treated for the consequence of a gas boiler explosion, which occurred subsequent to plaintiff's last visit with the defendant doctor, precluded exploration as to whether the subsequent accident, rather than the alleged malpractice of the defendant, was the cause of plaintiff's corneal condition. Such hospital record might also have shown that at the time of the explosion, and even the subsequent operation, plaintiff was indeed not blind.
Concur — Steuer, Rabin and McNally, JJ.; Eager, J.P., and Capozzoli, J., concur on constraint of the determination of appeal No. 11442, decided herewith.