Murphy v. Kitrinos , 176 N.Y.S.2d 240 ( 1958 )

In an action to recover damages for personal injuries, the appeal is (1) from a judgment dismissing the complaint, entered after trial by the court without a jury, and (2) from an order denying a motion to set aside the decision and for a new trial. Appellants, passengers in a motor vehicle owned and operated by respondent Kitrinos, were injured in a collision between that vehicle and a motor vehicle owned and operated by respondent Corlett and another motor vehicle owned by respondent Diaper Service Brooklyn & Queens Corporation and operated by respondent Warren. Judgment and order affirmed, without costs. No opinion. Nolan, P. J., Beldock and Hallinan, JJ., concur; Wenzel and Murphy, JJ., concur in the affirmance of the judgment and order as to respondents Corlett, Warren and Diaper Service Brooklyn & Queens Corporation, but dissent from the affirmance of said judgment and order as to respondent Kitrinos, and as to said respondent vote to reverse the judgment and the order, to sever the action and to grant a new trial between appellants and said respondent, with the following memorandum: It is our opinion that the trial court unintentionally and unduly restricted appellants’ proof upon the trial and that the interests of justice require a new trial as to respondent Kitrinos.