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JANIE MILES v. R & M APPLIANCE SALES (10/28/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


October 28, 1968

JANIE MILES, RESPONDENT,
v.
R & M APPLIANCE SALES, INC., DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF. RONDEL TELEVISION SERVICE COMPANY, THIRD-PARTY DEFENDANT

Christ, Acting P. J., Benjamin and Munder, JJ., concur; Brennan and Hopkins, JJ., concur in dismissal of appeal from the order, but otherwise dissent and vote to affirm the judgment.

Judgment of the Supreme Court, Westchester County, dated June 20, 1967, reversed, on the law and the facts, without costs, and complaint dismissed. The proof introduced by appellant overcame any favorable inferences which could reasonably be adduced from plaintiff's testimony. (See our prior decision [ Miles v. R & M Appliance Sales, 27 A.D.2d 857].) In the absence of such inferenes there is no evidence before us which can support a verdict on behalf of plaintiff. Appeal from order of said court dated June 19, 1967 dismissed, without costs. An order denying a motion to set aside a verdict, made on the trial minutes, is not appealable. In any event the foregoing disposition of the appeal from the judgment renders the appeal from the order academic.

19681028

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