Opinion
December 19, 1941.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., O'Malley, Townley, Dore and Cohn, JJ.
We think plaintiff's prima facie case raised for the jury issues of fact as to defendant Selengut and that it was error to dismiss the complaint against that defendant at the close of plaintiff's case. On the directed verdict against the other defendant Burneey no summation was allowed and a very cursory charge given on the measure of damages. As there must be a new trial, the judgment against defendant Burneey, so far as appealed from by plaintiff, should also be reversed in the interests of justice and a new trial granted.
The order denying plaintiff's motion for a new trial and the judgment so far as appealed from by plaintiff should be reversed and a new trial granted, with costs in favor of plaintiff against defendant Burneey and with costs to appellant to abide the event as against defendant Selengut.
Order denying plaintiff's motion for a new trial and the judgment so far as appealed from by plaintiff unanimously reversed and a new trial granted, with costs in favor of plaintiff against defendant Burneey and with costs to appellant to abide the event as against defendant Selengut. [ 175 Misc. 854. ]