Rabinowitz v. 2171 Food Corp.

• Decision Date: 21 February 1961
• Citation: 12 A.D.2d 321,211 N.Y.S.2d 319
• Parties: Bessie RABINOWITZ, Plaintiff-Respondent-Appellant, v. 2171 FOOD CORP., Defendant-Appellant, and James Georgallas d/b/a Banana Distributors of New York, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 319

211 N.Y.S.2d 319

12 A.D.2d 321

Bessie RABINOWITZ, Plaintiff-Respondent-Appellant, v. 2171 FOOD CORP., Defendant-Appellant, and James Georgallas d/b/a Banana Distributors of New York, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Feb. 21, 1961.

Paul O'Dwyer, New York City, of counsel (Leon Hershbaum, Brooklyn, with him on the brief, O'Dwyer & Bernstien, New York City), for appellant Rabinowitz.

Lester Samuels, New York City, of counsel (Weisman, Celler, Allan, Spett & Sheinberg, New York City, with him on the brief, Emanuel Morgenbesser, New York City), for appellant 2171 Food Corp.

Arthur N. Seiff, New York City, of counsel (George T. Nicholson, New York City), for defendant-respondent.

Before BOTEIN, P. J., and RABIN, VALENTE, McNALLY and STEVENS, JJ.

McNALLY, Justice.

In this action for personal injuries, plaintiff-respondent-appellant and defendant-appellant 2171 Food Corp. appeal from a judgment, entered April 1, 1960, in the sum of $9,220.37 entered on a verdict in favor of plaintiff. The appeal of the plaintiff is limited to the part of the judgment against her and in favor of defendant-respondent James Georgallas, doing business as Banana Distributors of New York.

On November 10, 1956, in front of premises 2171 Broadway, Borough of Manhattan, owned and controlled by defendant-appellant, the plaintiff stumbled over a crate, fell and sustained the injuries for which damages are sought in this action. Alleging the right of indemnity in respect of said occurrence, defendant-appellant cross-claimed against defendant-respondent who, according to plaintiff's theory of the case, was responsible for pushing or throwing a banana crate in her path.

At the close of the evidence the issues in plaintiff's cause of action were submitted to the jury and over the objections of defendant-appellant and defendant-respondent the issues of the cross complaint were reserved by the court for its disposition. The court also refused the request of defendant-appellant to require a special finding as to the plaintiff's claim that defendant-respondent pushed or threw a banana crate in her path.

The complaint, the bill of particulars and the court's charge to the jury are substantially grounded on the claim that plaintiff fell over a crate thrust into her path by an employee of defendant-respondent in the course of a delivery of crates of bananas to the store premises of defendant-appellant.

The jury returned a verdict in favor of plaintiff and against defendant-appellant, and found no liability as to defendant-respondent. The right to attack an inconsistent verdict exists in favor of a party aggrieved by it. Cubert v. Spencer, 9 A.D.2d 28, 189 N.Y.S.2d 460. The verdict exculpating defendant-respondent is inconsistent with and excludes the basis of liability alleged in the complaint, the bill of particulars, plaintiff's proof and the charge to the jury in that thereby the sole substantial ground for liability was the alleged careless and unexpected act of the employee of defendant-respondent in propelling a crate of bananas into the path of plaintiff.

The verdict may not stand because it is inconsistent with the allegations and the proof of plaintiff. Pangburn v. Buick Motor Co., 211 N.Y. 228, 105 N.E. 423; Cubert v. Spencer, supra; Puleo v. Casa Domenick Guffanti, Inc., 9 A.D.2d 662, 191 N.Y.S.2d 665; McCarthy v. Troberg, 275 App.Div. 139, 88 N.Y.S.2d 436. It is a fundamental rule that judgment shall be secundum allegate et probata. Romeyn v. Sickles, 108 N.Y. 650, 652, 15 N.E. 698, 699.

The complaint demands judgment for a sum of money only and consequently the right to a jury trial is clear. Civil Practice Act, § 425. Although circumstances may suggest the propriety of a separate trial of the issues of fact as to a cross complaint (see Civ.Prac.Act, § 193-a, subd. 4), which is not indicated here, unless a jury trial thereof is waived, the court may not withhold submission...