Hurley v. Butler — 117 N.Y.S. 1137

Majority

p. 1137

HURLEY v. BUTLER.

(Supreme Court, Appellate Division, First Department.

May 28, 1909.)

Headnote

Appeal from Trial Term, New York County. Action by William H. Hurley against Orlando W. Butler. Judgment for plaintiff, and defendant appeals.

Reversed.

Frank V. Johnson, for appellant.

Thos. J. O’Neill, for respondent.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event, on the ground that the verdict is against the weight of evidence; it appearing without contradiction that the embossing machines used by the defendant were of the character and description shown on the photographs introduced in evidence, upon which the plaintiff concedes the accident could not have happened as testified to upon the trial.

HOUGHTON, J., concurs, on the ground only that there was error in refusing to charge as requested. LAUGHLIN, J., dissents.