Frank v. Ryan — 194 A.D. 882

Majority

p. 882

Ivan Frank and Jacob London, Copartners, Doing Business under the Firm Name and Style of Manhattan Wash Suit Company, Respondents, v. Matthew N. Ryan, Doing Business under the Name and Style of William H. Brown, Son & Company, Appellant.

Headnote

Trial — requests to charge — prejudicial error.

Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office January 31, 1919, upon the verdict of a jury, and also from an order, dated January 28, 1919, and entered in said clerk’s office, denying a motion for a new trial.

The appellant’s attorney at the close of the trial handed up to the learned trial justice requests to charge, one of which was as to the plaintiff’s burden of proof. It appears from the record that the trial justice marked this request as “ charged.” The record, however, discloses that in fact the jury was not instructed as requested and the defendant’s attorney duly excepted to the refusal to charge as requested. There were questions of fact which were sharply contested upon the trial. Under the circumstances the court is constrained to reverse the judgment and order appealed from and direct a new trial, with costs to- appellant to abide the event. Present — Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. Judgment and order reversed and a new trial ordered, with costs to appellant to abide event.