Opinion
December 22, 1947.
Present — Peck, P.J., Dore, Cohn, Callahan and Shientag, JJ.;
Judgment affirmed, with costs to the plaintiff-respondent against the defendant-appellant, and, with costs to the defendant-respondent against the plaintiff-appellant and the defendant-appellant. No opinion.
I dissent upon the ground that recovery by the plaintiff is dependent upon expert testimony which is incredible. The plaintiff may have a cause of action against appellant, the Great Atlantic Pacific Tea Company, based on the doctrine of res ipsa loquitur, but since the case was not tried on that theory, the judgment may not be supported on that theory. I therefore dissent and vote to reverse and order a new trial as to all of the issues.