Majority
p. 825Horace Kepner, Respondent, v. Geraldine Barry, Orleans County Treasurer, as Administratrix of the Estate of Louis A. Herman, Deceased, Appellant. (Action No. 1.)
Order unanimously modified on the law and facts so as to direct a new trial of all issues and as so modified affirmed, without costs of this appeal to either party. Memorandum: The inadequacy of the verdicts may have been the result of a compromise by members of the jury because of doubt as to plaintiff’s right to recover. (See 4 Weinstein-Korn-Miller, N. Y. Prac., par. 4404.34.) Furthermore, the trial court failed to adequately charge the jury as to contributory negligence. (See 1 New York Pattern of Jury Instructions, Civil, pp. 176-177.) (Appeal from order of Erie Special Term granting a new trial only as to the amount of damages.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Yecchio, JJ.