Opinion
November 13, 1957
Appeal from the Cayuga Trial Term.
Present — McCurn, P.J., Vaughan, Williams, Bastow and Goldman, JJ.
Judgment reversed on the law and facts, without costs of this appeal to any party, and a new trial granted. Memorandum: We believe that defendant's motion for a new trial should have been granted. The record is silent on any circumstances, either before or on the night in question, which put the defendant society on notice that guards or attendants should have been provided for the protection of occupants of the premises. Furthermore, the charge of the court may have led the jury erroneously to believe that there is absolute liability on the part of a membership corporation for all of the acts of its members. Though no exception was taken to the charge the interests of justice require a new trial, especially since we feel that the verdict was against the weight of the credible evidence. ( Zeffiro v. Porfido, 265 App. Div. 185, 186.) All concur.