Casey v. Ross , 10 A.D.2d 938 ( 1960 )

Judgment in favor of plaintiff after a nonjury trial modified, on the law and on the facts, and judgment directed in favor of plaintiff in the sum of $3,000, and, as so modified, affirmed, without costs. Upon all -the evidence, we find the judgment below was excessive. In view of this finding, we are required by section 584 of the Civil Practice Act to grant judgment which the court below should have granted. (Calabria v. City & Suburban Homes Co., 5 A D 2d 983, affd. 5 N Y 2d 918; Leonard v. Frantz Co., 268 App. Div. 144; Bernardine v. City of New York, 268 App. Div. 444; 9 Carmody-Wait, New York Practice, § 177, p. 603.) Concur — Botein, P. J., Rabin and McNally, JJ.; Valente and Stevens, JJ., dissent in the following memorandum: We dissent and vote to reverse and dismiss the complaint on the ground that plaintiff was guilty of contributory negligence as a question of fact. Settle order. [22 Misc 2d 101.]