Montello v. Lombard

Action for wrongful death. Judgment for the plaintiff reversed on the law and the facts and a new trial granted, with costs to abide the event. Order granting plaintiff’s motion to amend the complaint nunc •pro tunc by pleading the New Jersey statute reversed on the law and the facts and motion denied, without costs. It was improper to grant plaintiff’s motion to enable her to have the benefit of the New Jersey statute, which she did not invoke during the trial of the action, and at the same time deny appellant the right to invoke the New Jersey statutes, in so far as they affected his liability. Such a course denied the appellant the opportunity to litigate the applicability or inapplica*766bility of the New Jersey statute that plaintiff invoked or to litigate the degree of plaintiff’s compliance with pertinent New Jersey statutes. The complaint was defective in failing to specify the factual basis for the conclusion that the decedent was lawfully riding in the automobile at the time he was killed, and the situation in this particular, coupled with the deficiency in the complaint respecting the pleading of pertinent New Jersey statutes, requires a holding that the ends of justice will be furthered by a new trial, at which time equal opportunity will be afforded the plaintiff and the appellant to litigate the pertinent issues of fact, and at which time appropriate amendments of the pleadings may be had, to the end that a result in accord with established precedents may be had. (Watkins v. Commercial Stevedoring Co., Inc., 216 App. Div. 234.) Lazansky, P. J., Young, Hagarty, Carswell and Scudder, JJ., concur.