De Pinto v. O'Donnell Transportation Co.

293 N.Y. 32 | NY | 1944

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The evidence amply supports the finding by the jury that there was negligence on the part of the defendant-appellant and freedom from contributory negligence on the part of the deceased. Upon consideration of the Federal statutes (U.S. Rev. Stat., §§ 4283, 4284, 4285; U.S. Code, tit. 46, §§ 183, 184 and 185, as amd. by Act of June 5, 1936, ch. 521 [49 U.S. Stat. 1479 et seq.]), we agree with the interpretation in The Chickie (141 F.2d 80), and, accordingly, under section 606 of the Civil Practice Act (as amd. by L. 1942, ch. 297), the judgment is reversed and the case is remitted to the Appellate Division, without costs, for determination upon the questions of fact, including discretion, raised in that court by the defendant-appellant's motion to amend the answer.

The judgment of the Appellate Division should be reversed, without costs, and the case remitted to the Appellate Division for determination upon the questions of fact, including discretion, raised in that court by the defendant-appellant's motion to amend the answer.

LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY, DESMOND and THACHER, JJ., concur.

Judgment accordingly.