Opinion
December 29, 1961
In a negligence action to recover damages for personal injuries sustained by plaintiff, a passenger in an automobile owned by defendant Glasser and operated by defendant Heiney, which collided with a parked vehicle, both defendants appeal from a judgment of the Supreme Court, Nassau County, entered January 13, 1961, after trial, upon a jury verdict of $30,000 in favor of the plaintiff against them. Judgment reversed on the facts, and a new trial granted, with costs to defendants to abide the event, unless, within 30 days after entry of the order hereon, plaintiff shall stipulate to reduce the verdict to $20,000 and to modify the judgment accordingly, in which event the judgment as so reduced and modified is affirmed, without costs. In our opinion the verdict was excessive. It is also our opinion that under all the circumstances the error, if any, with respect to the admission of the testimony relating to the scope of the permission granted to use the automobile in question, did not prejudice any substantial right of the defendants, and must be disregarded (Civ. Prac. Act, § 106). Beldock, Pette and Brennan, JJ., concur; Nolan, P.J., and Christ, J., dissent as to the conditional reversal of the judgment and as to the conditional grant of a new trial, and vote to reverse the judgment and to grant a new trial unconditionally, on the grounds: (1) that it was error to permit the witness Buchanan to testify, over objection, to the conclusory fact that the use of the car had not been "limited" by Terry Glasser, the daughter of defendant Libby Glasser; and (2) that, in view of the sharp issue as to the scope of the permission, such error is most substantial and requires the unconditional reversal of the judgment and a new trial.