Opinion
December 23, 1940.
Present — Lazansky, P.J., Hagarty, Carswell, Johnston and Adel, JJ.
Action for damages for personal injuries and for loss of services, as a consequence of plaintiff Marie E. Slacke being knocked down by a taxicab of the defendant corporation while crossing a street intersection. Plaintiffs had verdicts, which were set aside by the trial court and a new trial ordered. The plaintiffs appeal from that order and seek reinstatement of the verdicts. Order unanimously affirmed, without costs. The trial court did not in its memorandum or order state any reason for setting aside the verdicts. Its failure in this regard violates the rule clearly laid down in Coleman v. Brooklyn Queens Transit Corp. ( 252 App. Div. 215). We are unable, therefore, to determine whether the trial court's action was predicated on sound reasons. An examination of the record discloses that the trial court erred in its ruling respecting the comment of plaintiffs' counsel on the reason for the transfer of the action from the City Court to the Supreme Court, and the observations regarding a court having passed upon the wisdom of seeking damages greater than could be obtained in the City Court. These observations involved error and may have prejudicially affected the assessment of damages. Likewise it was error to permit the plaintiffs' expert witness to testify to complaints made by plaintiff Marie Elizabeth Slacke, when he examined her for the purpose of testifying and not for the purpose of treatment. ( Davidson v. Cornell, 132 N.Y. 228. )