260 A.D. 881 | N.Y. App. Div. | 1940
Action to recover damages for personal injuries alleged to have been sustained as the result of a fall upon a claimed “ mess of wax ” on the floor of defendant’s place of business. Plaintiff was a business visitor on the premises. Judgment for the plaintiff and order denying defendant’s motion to set aside the verdict and for a new trial reversed on the law and the facts and a new trial granted, with costs to abide the event. The finding of liability is against the weight of evidence. Furthermore, it was error to permit certain witnesses, who were jurors at the former trial, to testify to the appearance, at the time of that trial, of an exhibit not produced at the second trial, which testimony was the result of their observation and examination in the jury room. The testimony of how other persons apply wax in their business was not admissible. Lazansky, P. J., Hagarty and Adel, JJ., concur; Johnston and Close, JJ., concur in result.