Majority
p. 662STANTIAL v. UNION RY. CO. (Supreme Court, Appellate Term. December 11, 1906.) Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.
Headnote
Appeal—Review—Improper Instructions.It is the legal right of a party to an action to'have the rule governing the same correctly stated, and a judgment founded on improper instructions, duly excepted to, cannot be upheld.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4043.]
Appeal from Municipal Court, Borough of the Bronx, Second District.
Action by Robert S. Stantial against the Union Railway Company. From the judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.
William E. Weaver, for appellant.
Maurice J. McCarthy, for respondent.
The instructions given by the trial justice in stating the rule of damage were clearly erroneous (Schmidt v. Inter-borough Rapid Transit Co. [Sup.] 97 N. Y. Supp. 330 ); were excepted to at the close of the charge; were not modified or withdrawn, but were practically repeated and emphasized. Of course, we are unable to determine whether defendant was prejudiced or not thereby, but it may well have been. It was its legal right to have the rule correctly stated, and judgment founded upon improper instructions, duly excepted to, cannot be upheld.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.