May v. Heiney , 223 N.Y.S.2d 73 ( 1961 )

In our opinion the verdict was excessive. It is also our opinion that under all the circumstances the error, if any, with respect to the admission of the testimony relating to the scope of the permission granted to use the automobile in question, did not prejudice any substantial right of the defendants, and must be disregarded (Civ. Prae. Act, § 106). Beldoek, Pette and Brennan, JJ., concur; Nolan, P. J., and Christ, J., dissent as to the conditional reversal of the judgment and as to the conditional grant of a new trial, and vote to reverse the judgment and to grant a new trial unconditionally, on the grounds: (1) that it was error to permit the witness Buchanan to testify, over objection, to the conclusory fact that the use of the ear had not been “ limited ” by Terry Glasser, the daughter of defendant Libby Glasser; and (2) that, in view of the sharp issue as to the scope of the permission, such error is most substantial and requires the unconditional reversal of the judgment and a new trial.