Opinion
March 1, 1971
In a negligence action to recover for real and personal property loss resulting from a fire, defendant appeals from an interlocutory judgment of the Supreme Court, Kings County, entered March 23, 1970, in favor of plaintiffs upon a jury verdict after a trial limited to the issues of liability. Interlocutory judgment reversed, on the law and the facts, and new trial granted, with costs to abide the event. In our opinion, the finding, implicit in the jury's verdict, that defendant was negligent and that its negligence was the proximate cause of the damages to plaintiffs' property, is against the weight of the credible evidence. In addition, we find that the court erred in posing a series of hypothetical questions to defendant's expert witness which led to the conclusion that the fire may have started on the side of the house rather than on the porch. The state of facts assumed by these questions was not supported by the evidence and was inconsistent with the theory urged by plaintiffs throughout the trial ( Begley v. Prudential Ins. Co., 6 A.D.2d 869). Further, the court erred in instructing the jury that they could not find that the fire was caused by a burning cigarette. Rabin, P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.