Woodside Station Corp. v. Brieger

The findings are not only inconsistent but irreconcilable. We áre, accordingly, bound to accept the findings most favorable to appellant. As such findings are destructive of the judgment, the judgment must be reversed.

The appeal having been taken on the judgment roll as permitted by section 575 of the Civil Practice Act, we have the choice in reversing the judgment either to grant a new trial (Madison County Trust & Deposit Co. v. Smith, 259 N. Y. 348) or to order a reargument upon a complete record (Matter of Small v. Moss, 277 N. Y. 501, 515). In this instance, we are of the view that a new trial should be ordered.

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

Present — Martin, P. J., Glennon, Untermyer, Cohn and Callahan, JJ.

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