Percy Alston, Respondent, v. Leon Allgood, Appellant

Percy Alston, Respondent, v. Leon Allgood, Appellant. [MAJORITY] In a negligence action to recover damages for personal injuries, defendant appeals from a judgment of the Supreme Court, Kings County, entered February 17, 1972 in favor of plaintiff, upon a directed verdict on a separate trial of the issue of liability and upon a jury verdict of $17,500 upon the trial of the issue of damages. Judgment reversed, on the law and in the interests of justice, and new trial granted, with costs to abide the event. The appeal did not present questions of fact. At the trial on the issue of liability, before the court and a jury, the parties gave conflicting versions of how the accident happened. The testimony of either party could, if believed, support a verdict in his favor (cf. Rowlands v. Parks, 2 N Y 2d 64, 67-68). It was therefore error to direct a verdict in favor of plaintiff on the issue of liability (cf. CPLR 4401; Matter of Maira, 23 A D 2d 957). In the interests of justice there should he a new trial on the issues of both liability and damages. Rabin, P. J., Munder, Latham, Shapiro and Christ, JJ., concur.