Pordy v. Scot Service Co.

In this non jury action for wrongful death, the issue presented is close. Usually the judgment arrived at by the trial court is not to be disturbed but here the record contains statements by the trial court which reveal misapprehension of important phases of the testimony. This being a non jury ease, this court would have the power and, in many eases, the duty, to make findings and render the verdict that the trial court should have pronounced (Bruno v. Kosnac, 13 A D 2d 650, and cases cited). However, not every case lends itself to this procedure (Power v. Falk, 15 A D 2d 216) and we find that the interests of justice would best be served by a new trial. Concur—■ Rabin, J. P., Valente, McNally, Stevens and Steuer, JJ.