Smith v. Moskowitz — 267 A.D. 422

Majority

p. 422

Edward F. Smith et al., Respondents, v. Reuben Moskowitz, Appellant, et al., Defendants.

First Department,

February 25, 1944.

p. 423

J. O. Denniston of counsel (E. C. Sherwood, attorney), for appellant.

Joseph B. Wortmcm for respondents.

The doctrine of “ the last clear chance ” does not apply to the facts to which the plaintiffs testified (Wolos zynowski v. N. Y. C. R. R. Co., 254 N. Y. 206 ) and it was, therefore, error to submit that question to the jury.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Martin, P. J., Townley, Glennon, TJntermyeb and Does, JJ., concur.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.

Cases cited

Woloszynowski v. New York Central Railroad 254 N. Y. 206 N.Y. 1930-07-08 p. 423