Winkler v. American Sundries Co. 249 A.D. 759

In an action to recover damages for personal injuries sustained by the infant plaintiff from an alleged dangerous vaporizer device manufactured by the defendant, and for loss of services by the parent, order, on reargument, setting aside the verdicts in favor of plaintiffs and granting a new trial reversed on the law and the facts, with costs, the motion denied, the verdicts reinstated and judgment directed to be entered thereon, with costs. The submission of the additional charge to the jury was proper. The amended charge was more favorable to the defendant than the main charge and had not been requested by the defendant. Lazansky, P. J., Carswell and Davis, JJ., concur; Johnston and Adel, JJ., dissent and vote to affirm on the ground that the trial justice was the best judge as to whether or not the defendant had a fair trial. He concluded it did not by reason of the manner in which he submitted the case to the jury and because he so concluded he set aside the verdicts in the interest of justice. This he may do upon a motion under section 549 of the Civil Practice Act, and we should not disturb his order.