SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
October 8, 1968
ESTHER SALAS, AS ADMINISTRATRIX OF THE ESTATE OF LOUIS SALAS, DECEASED, ET AL., RESPONDENTS,
CITY OF NEW YORK, APPELLANT
Concur -- Steuer, J. P., Capozzoli, Tilzer, Rabin and McNally, JJ.
It is extremely doubtful whether the evidence adduced by the plaintiff is sufficient to spell out negligence on the part of this defendant under the circumstances of this case. However, assuming arguendo, that the defendant was negligent, there is no evidence from which the jury could reasonably infer that such negligence was the proximate cause of the drowning of the deceased. In any event, were we not dismissing the complaint as a matter of law, we would reverse and grant a new trial on the ground that the court committed serious error in allowing a witness for the plaintiff to testify, over objection, as to what she had been told by another addict, who escaped with decedent and who did not testify at the trial. Without this patently improper evidence plaintiff did not sustain the burden that the deceased met his death in the course of his escape. Further grounds for reversal are that the verdict was against the weight of evidence and a majority of the court believes the amounts awarded were excessive.
Judgment, after a jury trial, in this wrongful death action, in plaintiff's favor, unanimously reversed on the law and on the facts and complaint dismissed, with $50 costs and disbursements to appellant.
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