Fogel v. Nelson

• Decision Date: 14 October 1969
• Citation: 304 N.Y.S.2d 281,33 A.D.2d 540
• Parties: Fannie FOGEL, Kate Jacobs, Nat Jacobs and Benjamin Kamlet, Plaintiffs-Respondents-Appellants, v. Donald NELSON, Defendant-Appellant-Respondent, Joseph Brown and Goldie Brown, Defendants-Respondents
• Court: New York Supreme Court — Appellate Division

Page 281

304 N.Y.S.2d 281

33 A.D.2d 540

Fannie FOGEL, Kate Jacobs, Nat Jacobs and Benjamin Kamlet Plaintiffs-Respondents-Appellants, v. Donald NELSON, Defendant-Appellant-Respondent, Joseph Brown and Goldie Brown, Defendants-Respondents.

Supreme Court, Appellate Division,

Oct. 14, 1969.

B. Eilen, Brooklyn, B. Eigg, New York City, for plaintiffs-respondents-appellants.

J. Nielsen, New York City, for defendant-appellant-respondent.

Before STEVENS, P.J., and EAGER, McGIVERN, McNALLY and STEUER, JJ.

PER CURIAM.

Order of this Court, entered July 8, 1969, 32 A.D.2d 904, 302 N.Y.S.2d 277, recalled and vacated.

Order, entered in this action on October 8, 1968, insofar as it sets aside jury verdict in favor of defendant Nelson and directs a new trial, unanimously reversed, on the law, with $50 costs and disbursements, verdict reinstated, and judgment directed for said defendant, and said order, insofar as it sets aside verdict in favor of plaintiffs Kate Jacobs, Nat Jacobs and Benjamin Kamlet against defendants Brown on the liability issue, unanimously reversed, on the law, without costs and without disbursements, verdict in favor of said plaintiffs against defendants Brown reinstated, and action remanded for trial of damage issues. The plaintiff Fogel, however, according to the statement of her counsel, has withdrawn her appeal from the order insofar as it sets aside the jury verdict against the defendants Brown. The evidence amply supports the verdict of the plaintiffs against the defendants Brown. There is also support in the evidence for the specific finding by the jury that negligence of the defendant Nelson was not a proximate cause of the vehicle accident and there was no inconsistency in the jury verdict. 'It is settled that a jury verdict in favor of defendant may not be set aside unless it plainly appears that the evidence so preponderates in favor of the plaintiff that the verdict for the defendant could not have been reached on any fair interpretation of the evidence. (Areson v. Hempstead Bus Corp., 14 A.D.2d 790, 220 N.Y.S.2d 462; Musumeci v. Pillsbury Mills, 12 A.D.2d 941, 942, 210 N.Y.S.2d 945; Holpp v. Carafa, 8 A.D.2d 617, 185 N.Y.S.2d 63; Scheuerman v. Knapp Coal Co., 238 App.Div. 874, 875, 263 N.Y.S. 353; Meyers v. Hines, 199 App.Div. 594, 595, 191 N.Y.S. 773.)' (Marton v. McCasland, 16 A.D.2d 781, 782, 228 N.Y.S.2d 756.) The trial court, instead of setting aside the jury verdict, should have directed judgment in accordance...