SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
June 20, 1968
JANE STEIN ET AL., RESPONDENTS,
SAMINEY REALTY CORPORATION, APPELLANT, ET AL., DEFENDANT
Concur -- Stevens, J. P., Steuer, Tilzer, McGivern and Rabin, JJ.
In this action for refund and treble damages for alleged rent overcharges, the stricken testimony of the witness Mushkin was so prejudicial to the defendant that it could not be cured by the belated striking and direction to the jury to disregard such testimony. While certain inferences could reasonably be drawn from the testimony, the underlying charge of conspiracy upon which appellant's liability was predicated was not proved by a preponderance of the competent evidence. It is extremely difficult, if not impossible, to ascertain from the record the actual number of apartments rented by appellant to Palmblad, the missing defendant, what sum or sums were received in payment for each apartment, whether the total testified to merely represents total payment for such apartments, or if there is such discrepancy that it might be inferred that Palmblad paid over to appellant any excess received by him beyond his stated rental for the apartment in question.
Judgment insofar as appealed from unanimously reversed, on the law, the judgment vacated and a new trial ordered, with $50 costs and disbursements to abide the event.
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