Itkin v. Ringer , 12 A.D.2d 732 ( 1960 )

Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The trial court erred in restricting the use of the pretrial testimony of the attending physician. We see no objection to the hypothetical question and answer that were excluded. Moreover, it is impossible to pass upon the rulings of the trial court because of the procedure adopted of reviewing the deposition in chambers without a stenographer present. The plaintiffs, Inez Itkin and James Itkin, are entitled to a new trial. While these errors did not directly affect the verdict returned in favor of the infant we conclude that in the interests of justice a new trial should be directed in that action. In passing we note that defendant’s exception to the instruction of the trial court that there was little dispute that the accident happened as a result of defendant’s negligence was properly taken. Of course, this was a prejudicial statement. (Appeal by plaintiff from judgment of Monroe Trial Term for plaintiff in an automobile negligence action.) Present — Bastow, J. P., Goldman, Halpern, McClusky and Henry, JJ.