278 A.D. 1018 | N.Y. App. Div. | 1951
-Judgment and order reversed on the law and facts, without costs of this appeal to either party, and complaint dismissed. Memorandum: We think the plaintiff failed to prove facts from which the jury could find any actionable negligence on the part of the defendant hospital. Even though there was such proof we would be required to reverse and order a new trial because of errors in the court’s charge when the jury returned to the court room for instructions. However, the plaintiff having failed to establish negligence the complaint should be dismissed. All concur, except McCurn, J., who votes for reversal and for granting a new trial. (Appeal from a judgment for plaintiff in a negligence action. The order denied a motion for a new trial.) Present — Taylor, P. J., McCurn, Vaughan, Piper and Wheeler, JJ.