Fitzpatrick v. City of New York

We are of the opinion that the judgment is against the weight of the credible evidence; that competent evidence, including an admission made on a former trial by plaintiff’s attorney, was excluded, and that the charge of the court failed to properly present for consideration of the jury the questions of fact involved. The attorney for plaintiff was permitted to inform the jury that the city could have vouched in the owner of the premises in front of which the accident occurred, and that the owner would have been directly responsible to the city of New York. The property owner would not be liable under the *741circumstances here disclosed. In view of the fact that there must be a new trial it is unnecessary to further discuss the grounds for reversal for they are unlikely to arise on another .trial. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. Present — Dowling, P. J., Merrell, Martin, O’Malley and Proskauer, JJ. Judgment reversed and a new trial ordered, with costs to appellant to abide the event.