Sobel v. Levy

160 N.Y.S. 1049 | N.Y. App. Term. | 1916

Bijur, J.

Appellant Levy and James A. Hearn & Son were sued for damages for personal injuries arising out of an alleged joint tort, namely, the negligence of their respective employees in the conduct of two automobiles.

It developed at the trial that the action had during the course thereof been discontinued as against Hearn & Son. Appellant Levy was permitted to ask plaintiff’s counsel whether the discontinuance was under an agreement with the attorney of Hearn & Son, to which an affirmative answer was given. He then asked: “ Will you tell us whether under that agreement any sum of money was paid or promised to be paid to plaintiff? ” An objection to this question was sustained and appellant’s counsel excepted. Objections, to two other questions to the same general effect were similarly sustained.

As I understand respondent’s brief, he concedes that plaintiff could have but one satisfaction for his injury. He does not answer appellant’s claim that the amount, if any, received from one of the joint tort feasors should be taken into account by the jury in its award of damages. It is evident, therefore, that the testimony excluded was relevant, material and competent, and that its exclusion constituted such important error that the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Guy and Shearn, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event..