Spitzer v. Schmitt , 292 N.Y.S. 64 ( 1936 )

On appeal by the plaintiffs from a judgment in favor of the defendants in an action for malpractice, judgment reversed on the law as to defendant Frederick Schmitt, and on the law and the facts as to defendant Flamm, and a new trial granted, costs to abide the event. We are of opinion that a prima fade case of negligence was made out by the plaintiffs as against defendant Schmitt, as against whom the complaint was dismissed at the close of the plaintiff’s case. As to defendant Flamm, in whose favor the jury rendered a verdict, we are of opinion that the interjections of the learned trial judge and his characterizations of the issue and the parties in his charge deprived the plaintiffs of a fair trial. Lazansky, P. J., Young, Hagarty, Adel and Taylor, JJ., concur.