3 A.D.2d 704 | N.Y. App. Div. | 1957
Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event. The trial court granted defendants’ motion to set aside a verdict of the jury in favor of the plaintiff in this action for libel. Plaintiff, having established a prima facie case, it was error to dismiss the complaint. However, the verdict of the jury, in the interest of justice, may not be reinstated. The record is confused and incomplete as to the material underlying financial transactions between the parties prior to the publication of the libel. The plaintiff was unable to remember or unwilling to reveal what he did with the money he received from the pools, the clubs and the lodge. Moreover, plaintiff’s testimony on the matter of his damages was patently not candid. The charge to the jury, in addition to containing conflicting instructions on the burden of proof, failed to clarify the issues for the jury. Concur — Breitel, J. P., Valente, McNally and Bastow, JJ.
