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HELEN R. MACKENNAN v. JAY BERN REALTY COMPANY (06/10/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


June 10, 1968

HELEN R. MACKENNAN, RESPONDENT,
v.
JAY BERN REALTY COMPANY, INC., APPELLANT, ET AL., DEFENDANT

Beldock, P. J., Christ, Brennan, Hopkins and Martuscello, JJ., concur.

In our opinion, this finding was contrary to the weight of the evidence. However, we do not conclude that, had the jury been fully apprised of the second prerequisite, it could not have concluded that appellant's conduct was such as to be tantamount to a wanton and willful disregard of plaintiff's rights. Nor do we make any determination in that respect. It is our view that, absent the inclusion of this latter prerequisite in the court's charge, the jury was not fully apprised of the applicable principles and the parties were not afforded an evaluation of the evidence adduced in such enlightened perspective. Accordingly, we conclude that the interests of justice require a new trial at which all relevant facts and circumstances may be adduced and evaluated and the jury fully apprised of the applicable principles as herein indicated. In view of the foregoing conclusions, we do not pass upon any of the other issues raised by the parties on this appeal.

19680610

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