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GERTRUDE KARPEL v. ALFRED SCHLEYER ET AL. (07/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


*fn*: July 21, 1969.

GERTRUDE KARPEL, RESPONDENT,
v.
ALFRED SCHLEYER ET AL., APPELLANTS

Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Kleinfeld, JJ., concur.

In a negligence action to recover damages for personal injuries, in which, after a jury trial upon the issues of liability only, a verdict was rendered in favor of plaintiff against defendant Schleyer and in favor of defendant Olmezer against plaintiff, and the trial court set aside the verdict in favor of defendant Olmezer and directed a verdict against defendant Olmezer, defendants appeal from an interlocutory judgment of the Supreme Court, Kings County, dated November 27, 1968, which awarded judgment in favor of plaintiff against both defendants and ordered an assessment of damages. Interlocutory judgment modified by (1) limiting the award of the judgment and the direction of assessment of damages so that same shall be against defendant Schleyer only and (2) adding a provision denying plaintiff's motion to set aside the verdict in favor of defendant Olmezer, reinstating said verdict, and severing the action as against defendant Olmezer, so as to permit entry of a separate judgment in favor of defendant Olmezer. As so modified, interlocutory judgment affirmed, with costs to plaintiff against defendant Schleyer and in favor of defendant Olmezer against plaintiff. There was sufficient evidence to support a finding that defendant Schleyer was negligent in failing to stop at the stop sign. There was also sufficient evidence to support a finding by the jury that there was no negligence upon the part of defendant Olmezer. The trial court should not have set aside the jury verdict in favor of Olmezer and directed a verdict against him.


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