Opinion
June, 1929.
Appeal from Supreme Court, New York County.
On a prior appeal this court decided that there were amazing inconsistencies and contradictions between the plaintiff's testimony given on the first trial and her testimony given the following day on the second trial. The plaintiff testified and reiterated her testimony on several occasions that she fell by tripping on the second step from the top of a stairway. After it was positively shown that there was no defect of any kind on the second step from the top of that stairway, the attorney for the plaintiff requested permission to withdraw a juror and consented to a mistrial. The following day the case was placed on trial a second time and the plaintiff changed her testimony and testified that she tripped on the second step from the bottom of the stairway. It was shown by the appellant that this was an afterthought and in direct contradiction of the testimony given by the plaintiff on the previous day, at which time the plaintiff positively testified that she tripped on the second step from the top of the stairway. It was also shown that there was a slight crack in the second step from the bottom of the stairway. The evidence offered by the defendant, however, established that the step was not in a dangerous condition. The judgment obtained by the plaintiff was reversed and a new trial ordered on the ground that it was against the weight of the credible evidence. We are of the opinion that the last verdict is against the weight of the credible evidence and that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. Dowling, P.J., Merrell, Martin and Proskauer, JJ., concur; O'Malley, J., dissents. Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.
See 224 App. Div. 716. — [REP.