Nathan v. Uvalde Asphalt Paving Co. — 142 N.Y.S. 1131

Majority

p. 1131

NATHAN v. UVALDE ASPHALT PAVING CO.

(Supreme Court, Appellate Term, First Department.

June 24, 1913.)

Headnote

Appeal from Municipal Court, Borough of Manhattan, First District. Action by Lemuel E. Nathan against the Uvalde Asphalt Paving Company. From a judgment of the Municipal Court of the City of New York, rendered in favor of the plaintiff, defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulates to a modification of the judgment by reducing it to the sum of $134.90, in which event, judgment, as modified, affirmed. M. S. & I. S. Isaacs, of New York City (Lewis M. Isaacs, of New York City, of counsel), for appellant. Aaron Morris, of New York City, for respondent.

The question of contributory negligence and the negligence of the driver of defendant’s steam roller was one of fact.

p. 1132

and there is no sufficient reason shown for disturbing the judgment of the lower court in this respect. The evidence of the value of the use of plaintiffs taxicab during the time it was being repaired is insufficient to uphold the amount allowed therefor in the judgment. Judgment reversed, and new trial ordered, with costs to appellant to abide the event, unless plaintiff will stipulate, within five days after service of a copy of the order herein and notice of entry, that the judgment be modified, by reducing the same to the sum of $134.90, with appropriate costs in the court below, in which event the judgment, as modified, will be affirmed, without costs to either party of this appeal.