McFadden v. Richard 249 A.D. 780

Action to recover damages for personal injuries to two of the plaintiffs and for damages sustained by the third plaintiff for loss of services of the infant plaintiff, alleged to have resulted from the negligence of the defendant in the operation of an automobile. Judgment in favor of the defendant entered upon a verdict reversed on the law and the facts and a new trial granted, with costs to the appellants to abide the event. Appeal from order denying motion to set aside the verdict, not printed in the record, dismissed. The evidence presented sharp issues of fact which were submitted to the jury by the trial justice, who, however, in our opinion, exceeded his functions in certain comments made in the presence of the jury during the trial, particularly at folios 379 and 380, which comments were prejudicial to the plaintiffs, and erred in his charge by statements therein the effect of which was to east doubt upon the plaintiffs’ ease. The trial was thereby rendered unfair and partial. A new trial is, therefore, required in the interest of justice. Young, Johnston and Taylor, JJ., concur; Lazansky, P. J., and Adel, J., concur as to the dismissal of the appeal from the order, but dissent as to the reversal of the judgment and vote to affirm.