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MARY SPURLING v. S & M CATERERS (12/23/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


December 23, 1968

MARY SPURLING, APPELLANT,
v.
S & M CATERERS, INC., RESPONDENT

Appeal from (1) an order of the Supreme Court, Kings County, dated July 27, 1966, which granted defendant's motion to set aside a jury verdict in plaintiff's favor and to dismiss the complaint, and (2) a judgment of said court entered October 3, 1966 upon said order.

Brennan, Acting P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.

In our opinion, the verdict was contrary to the weight of the evidence. However, the evidence was such as to entitle plaintiff to a new trial, not such as to require dismissal of the complaint.

Disposition

Order modified, on the law, by striking out all the decretal provisions therein other than that which set aside the verdict and by adding thereto a provision granting a new trial. As so modified, order affirmed, and judgment reversed, on the law, with costs to abide the event of the new trial. The findings of fact below are not affirmed.

19681223

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