General

Zelda Tomaschoff, Respondent, v. Stapleton Drug Co., Inc., Appellant, and Simon Tomaschoff, Defendant

263 A.D. 728·New York Supreme Court, Appellate Division·1941·NY

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Opinion

Zelda Tomaschoff, Respondent, v. Stapleton Drug Co., Inc., Appellant, and Simon Tomaschoff, Defendant. [MAJORITY] In an action to recover for personal injuries sustained in an automobile collision, judgment entered on the verdict of a jury in favor of the plaintiff and order denying appellant’s motion to set aside the verdict and for a new trial reversed on the law and the facts, and a new trial granted, costs to abide the event. In this court’s opinion, the instructions to the jury were inadequate. In addition, the jury should have been instructed to disregard the testimony which was struck out at folio 151 of the record. Lazansky, P. J., Hagarty and Adel, JJ., concur; Carswell and Close, JJ., dissent and vote to affirm on the ground that the record presented an issue of fact for determination by the jury.