Carafas v. City of New York

(dissenting). I dissent, and would reverse the judgment and dismiss the complaint.

Where the case was tried by the court without a jury, we should, on appeal, enter the judgment that the trial court should have granted. (Civ. Prac. Act, § 584, subd. 2; Greater N. Y. Ins. Co. v. Perry, 6 A D 2d 432, 437; Calabria v. City & Suburban Homes Co., 5 A D 2d 983, affd. 5 N Y 2d 918.) Ordinarily, *620the credibility of witnesses is for the trial court, but where, as here, the testimony concerning the manner of the occurrence of the accident is not only vague and indefinite and so highly improbable, and the testimony as to the period of time of the existence of the alleged defect is so unreliable, “we are not required to give credence to a story so inherently improbable that we are morally certain it is not true.” (Bottalico v. City of New York, 281 App. Div. 339, 341.)

Botein, P. J., Breitel, M. M. Prank and Stevens, JJ., concur in decision; Valente, J., dissents and votes to reverse and dismiss.

Judgment affirmed, with costs to the respondent.

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered October 11, 1957, in New York County, upon a decision of the court at a Trial Term, without a jury.

Judgment affirmed, with costs to the respondent.