Wager v. State, 31236
| Court | New York Supreme Court Appellate Division |
| Writing for the Court | BERGAN |
| Citation | 187 N.Y.S.2d 445,8 A.D.2d 236 |
| Parties | William WAGER, Claimant-Appellant, v. STATE of New York, Defendant-Respondent. Claim |
| Docket Number | No. 31236,31236 |
| Decision Date | 17 June 1959 |
Page 445
v.
STATE of New York, Defendant-Respondent.
Page 446
[8 A.D.2d 237] N. LeVan Haver and Charles H. Gaffney, Kingston, for claimant-appellant.
Page 447
Louis J. Lefkowitz, Atty. Gen., (Paxton Blair, Sol. Gen., Albany, James G. Austin and Jerome Lefkowitz, Asst. Attys. Gen., of counsel), for defendant-respondent.Before FOSTER, P. J., and BERGAN, COON, GIBSON, and HERLIHY, JJ.
BERGAN, Justice.
In the first appeal in this case (285 App.Div. 1199, 140 N.Y.S.2d 869, 871) the judgment of the Court of Claims dismissing the claim was reversed and a new trial directed. The Court of Claims was then of opinion that although the State had been shown negligent in the manner in which it maintained the highway approaching a bridge at the outskirts of Kingston at the site of the accident where claimant was injured, such negligence was not shown to have been a proximate cause of the accident.
The court had declined to pass on the question of the contributory negligence, if any, of the claimant and had declined to make any finding on the proximate cause of the accident. In remitting the case this court was of opinion that on the new trial 'facts pertaining to the issues which the Court of Claims did not find it necessary to reach can be adduced' and on such facts 'determination can be made.' This court noted especially there had been a failure to call as a witness William Rubin, the driver of the car in which claimant was riding when injured.
On the retrial of the case the driver was called as a witness. He testified as to the accident that 'I have no recollection of it whatsoever'. He had sustained some injuries in the accident. Other proof on the new trial did not add substantially to the factual showing previously made.
The Court of Claims after the new trial made a finding that the State was 'guilty of negligence in the maintenance, repair, design and construction' of the road 'where said accident happened' and that the State had due notice of the condition but found that the claimant had 'failed to prove' that this negligence 'was the proximate cause of the accident'.
The court, however, also refused to find that the negligence of the driver Rubin was the proximate cause of the accident and refused to find that claimant, as a passenger in the Rubin car, was 'guilty of contributory...
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Wager v. State, 31236
...by claimant-appellant for reargument adjourned on the application of the Attorney General until September 21, 1959. See also App.Div., 187 N.Y.S.2d 445. BERGAN, J. P., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.,...
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Gamewell Co. v. Public Service Commission of State of N.Y.
...company function'. We do not attempt to evaluate either of these additional contentions since we prefer to rest our decision on the broad [8 A.D.2d 236] concept of telephone service as envisaged by the statute and by common understanding as The conclusion which we have reached upon the meri......
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Wager v. State
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Wager v. State
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Wager v. State, 31236
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