6 A.D.2d 769 | N.Y. App. Div. | 1958
Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The verdict is against the weight of the evidence. Furthermore, there is no proof of compliance with the provisions of section 50-e of the General Municipal Law. One other matter requires comment. An important diagram was received in evidence. Witnesses were permitted to testify concerning it by indicating or pointing to certain parts of it without, in any way, stating into the record to which parts they referred. This resulted in much of the testimony being vague and confusing. Trial courts should cautiously guard against such practice. Clarity, of a record is necessary to an intelligent review by an appellate court. All concur. (Appeal from a judgment of Niagara Trial Term for plaintiff in an action for property damage to plaintiff’s premises alleged to have been caused by negligent maintenance of sewer. The order denied a motion for a new trial.) Present — McCurn, P. J., Kimball, Williams, Goldman, and Halpern, JJ.
