Dailey v. Luther 10 A.D.2d 723

Appeal (1) from so much of a judgment, entered after trial before the court without a jury, as in favor of respondent against appellant, and (2) from the decision on which the judgment was entered. Respondent, a passenger in a motor vehicle, sued to recover damages for injuries received when that vehicle was involved in a collision with a motor vehicle operated by appellant. Judgment insofar as it is in favor of respondent against appellant reversed, respondent’s cause of action severed, and a new trial granted as to the issues raised by that cause of action and the answer thereto, with costs to appellant to abide the event. Since the record indicates that counsel for the parties to this appeal were not afforded reasonable opportunity to present material evidence, it is our opinion that a new trial is required in the interests of justice. Appeal from decision dismissed. No appeal lies from a decision. Ughetta, ICleinfeld and Christ, JJ., concur; Beldoek, Acting P. J., and Brennan, J., concur in the dismissal of the appeal from the decision but dissent from the reversal of the judgment and the granting of the new trial and the vote to affirm the judgment insofar as appealed from.