George Olivier et al., Respondents, v. Mantione Contracting Corp., Appellant, et al., Defendants

George Olivier et al., Respondents, v. Mantione Contracting Corp., Appellant, et al., Defendants. [MAJORITY] Order, entered on April 12,1967 in this personal injury action, after a jury trial on the issue of liability, affirmed insofar as it provides that defendant-appellant is liable to plaintiffs for damages to be determined by a jury, with $50 costs and disbursements to plaintiffs. The jury’s verdict is amply supported by the record, which clearly demonstrates that the existence of a chase in the pier was not physically impossible. Quite to the contrary, the bricklayer who built the chase, Mr. Palmieri, testified to-the dimensions of the pipe, indicating that they were as set forth in the dissent, and stated that the chase was built “ to follow the contour of the pipe ”. Moreover, the pier was constructed so that it surrounded the pipe on only three sides. Concur — Botein, P. J., Capozzoli and Rabin, JJ.; Tilzer and McNally, JJ., dissent in the following memorandum: We dissent and vote to order a new trial, on the ground the verdict is against the weight of the evidence. The physical facts demonstrate the impossibility of the existence of a chase in the pier. The castiron pipe, which was introduced into evidence, had an inside diameter of 4 inches with an outside diameter of 4y2 inches, along with a hub at the end of the pipe which measured 6% inches at the outer rim. It would be physically impossible to insert a castiron pipe of these dimensions into a chase which obviously was insufficient in size to accommodate it. Plaintiffs’ proof showed the chase to be 4 inches by 4 inches.