Smith v. Moskowitz

Full title: EDWARD F. SMITH et al., Respondents, v. REUBEN MOSKOWITZ, Appellant, et…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 25, 1944

267 App. Div. 422 (N.Y. App. Div. 1944)

46 N.Y.S.2d 449

Opinion

February 25, 1944.

Appeal from Supreme Court, Bronx County, KOCH, J.

J.O. Denniston of counsel ( E.C. Sherwood, attorney), for appellant.

Joseph R. Wortman for respondents.

Per Curiam.

The doctrine of "the last clear chance" does not apply to the facts to which the plaintiffs testified ( Woloszynowski v. N.Y.C.R.R. Co., 254 N.Y. 206) and it was, therefore, error to submit that question to the jury.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

MARTIN, P.J., TOWNLEY, GLENNON, UNTERMYER and DORE, JJ., concur.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.