Wagner v. Wagner

In an action to recover damages for injuries resulting from a fall through an opening in a floor of an untenanted dwelling, alleged to have been caused by the defendant’s failure to apprise the plaintiff of the danger at the time she requested him to perform services which exposed him to the danger, order setting aside the verdict and granting a new trial unanimously affirmed, with costs to abide the event. In our opinion, it was within the discretion of the trial court to set aside the verdict as against the weight of evidence on the record here presented. Although the trial court's memorandum predicates the setting aside of the verdict on another ground, the order itself recites that the verdict was against the weight of the evidence, in addition to the other ground urged on the motion and mentioned in the memorandum. We are further of opinion that the status of the insurance company, as revealed on the trial, afforded no basis for a new trial, as respondent’s counsel not only waived objections to the alleged injection of that issue into the case, but tried the case on the theory that his actual client was the insurance company, which the plaintiff and the ostensible defendant jointly were endeavoring to mulct in damages. Present —■ Lazansky, P. J., Hagarty, Carswell, Davis and Johnston, JJ.