Majchrzak v. Zawadski

Memorandum: The court at Special Term said: “ The finding of the trial court is erroneous and contrary to the weight of evidence. The judgment in favor of the plaintiff is hereby reversed and set aside.” On that decision the order appealed from was entered. Neither the decision nor the order sets forth that the complaint is dismissed. The parties, however, have construed the order as a final determination dismissing the complaint, and we are so considering it here. There is nothing in the record as to the time when the witness Piekarski arrived at the scene of the accident, or whether or not the cars had been moved before he arrived; consequently, his testimony is of no value to corroborate defendant’s testimony as to the position of the cars immediately after the accident occurred. On this record the determination must be largely a question of the credibility of the witnesses who were present when the accident occurred, one of whom was not sworn. A retrial in the City Court of Buffalo is in the interests of justice. All concur. (The judgment reverses a judgment of the Buffalo City Court in favor of plaintiff and directs judgment' in favor of defendant and against plaintiff, in an automobile negligence action.) Present — Taylor, P. J., Love, Vaughan, Eamball and Piper, JJ.