Mozdzier v. Ruge ( 1954 )

— Judgment in favor of plaintiff against defendants Ruge affirmed, with costs; judgment in favor of plaintiff against defendant City of Buffalo, and order, reversed on the law and facts, and a new trial granted as to defendant City of Buffalo, with costs to the appellants to abide the event. Appeal from order denying a motion for a new trial on the ground of newly discovered evidence dismissed as academic. Memorandum: The verdict of the jury as against the defendants Ruge is supported by the evidence. We think that is not the case as to the defendant City of Buffalo. We also think the statement of the witness Williams should have been received in evidence on the question of his credibility. Although the summations of counsel are not before us, we assume that in the summation of counsel some reference was made to the failure of the defendant City of Buffalo to produce certain witnesses; if so, that defendant was entitled to the request made by its counsel. As there must be a new trial, we do not pass on the appeal from the order denying a new trial on the ground of newly discovered evidence. All concur. (Appeals from a judgment for plaintiff in an automobile negligence action. The order denies a motion for a new trial.) Present — MeCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.