Frontenac v. Great Atlantic & Pacific Tea Co.

273 A.D. 766 | N.Y. App. Div. | 1947

Judgment affirmed, with costs to the plaintiff-respondent against the defendant-appellant, and, with costs to the defendant-respondent against the ¡plaintiff-appellant plaintiff-appellant and the defendant-appellant. No opinion. Present — Peck, IP. Dore, Cohn, Callahan and Shientag, JJ.; Peck, P. J., I dissent upon the ground that recovery by the plaintiff is dependent upon expert testimony which is incredible. The plaintiff may have a cause of action against appellant, the Great Atlantic & Pacific Tea Company, based on the doctrine of res ipsa loquitur, but since the case was not tried on that theory, the judgment may not be supported on that theory. I therefore dissent and vote to reverse and order a new trial as to all of the issues.