Opinion · Nylaw New York

UNDERHILL v. SLUTZKY, 260 App. Div. 882 (1940)

WALTER L. UNDERHILL, Appellant, v. DAVID SLUTZKY, Respondent., 260 A.D. 882 (Appellate Division of the Supreme Court of New York, Second Department. 1940)

Type: Opinion
Court: Nylaw New York
Jurisdiction: Nylaw
Date: 1940-10-21
Topic: general

UNDERHILL v. SLUTZKY, 260 App. Div. 882 (1940) WALTER L. UNDERHILL, Appellant, v. DAVID SLUTZKY, Respondent.Appellate Division of the Supreme Court of New York, Second Department.

Citator

UpLaw has not yet analyzed UNDERHILL v. SLUTZKY, 260 App. Div. 882 (1940). The absence of a flag is not a finding that it is good law.

UNDERHILL v. SLUTZKY,260 App. Div. 882(1940)

WALTER L. UNDERHILL, Appellant, v. DAVID SLUTZKY, Respondent.

Appellate Division of the Supreme Court of New York, Second Department.

October 21, 1940.

Appeals by plaintiff in an action for damages for personal injuries (a) from a judgment in favor of defendant, entered on a jury verdict, and (b) from an order denying plaintiff's motion to set aside the verdict and for a new trial. Judgment and order unanimously affirmed, with costs. The prior inconsistent written statement of one of the witnesses was properly received in evidence to impeach him (Civ. Prac. Act, § 343-a) and was competent for that purpose only. There was an erroneous instruction by the court in relation to the statement; plaintiff did not except to that instruction but in effect expressly endorsed the charge, which became the lawPage 883of the case. (Cooperv.Brooklyn Queens T. Corp.249 App. Div. 774;Pettisv.New York State Electric Gas Corp., Id. 487, 490;Halpinv.New York Railways Corp., 250 id. 613, 615; andvide Fitzpatrickv.International Ry. Co.,252 N.Y. 127,141.) A party may avoid the foregoing rule only by showing that he did not have a fair trial. (Haefeliv.WoodrichEngineering Co.,255 N.Y. 442,445,446;Muldoonv.DockContractor Co.,199 App. Div. 733.) The record here does not disclose that plaintiff did not have a fair trial, but quite the contrary. The alleged error complained of in the charge did not affect a substantial right, and must be disregarded. (Civ. Prac. Act, § 106.)

Present — Lazansky, P.J.. Carswell, Johnston, Taylor and Close, JJ.