SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
December 11, 1969
VICTOR TORRES, APPELLANT,
CITY OF GENEVA ET AL., RESPONDENTS
Appeal from judgment of Ontario Trial Term dismissing complaint in action for damages for assault and battery.
Del Vecchio, J. P., Marsh, Gabrielli, Moule and Bastow, JJ.
Memorandum: The issues herein presented a sharp factual question as to whether injuries received by plaintiff, resulting in his becoming a quadriplegic, were caused through the negligent acts of the individual defendants (police officers employed by defendant city) or as the result of an earlier fall when plaintiff was pushed over a porch railing and fell to the ground below. Participants in this earlier episode were one Cirino and a Miss Bell who were living together. They were called as witnesses by defendants and related the events which culminated in Miss Bell pushing plaintiff over the porch railing. In the course of their testimony defendants offered and there were received over objection seven photographs wherein a police officer and one or both of the witnesses are depicted re-enacting their version of how the accident happened. We conclude that the receipt of these obviously "staged" photographs was highly prejudicial to plaintiff and a new trial is mandated.
Judgment unanimously reversed on the law and facts and a new trial granted, with costs to appellant to abide the event.
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