Assalone v. Hazel , 243 A.D. 714 ( 1935 )

Motion for reargument granted and on reargument, the decision of this court handed down on June 3, 1933 [240 App. Div. 701], is amended to read as follows: On appeal by Forsythe Bros., Inc., amended judgment reversed on the law and a new trial granted, costs to abide the event, upon the ground that the court erred in refusing to charge that there was no proof that defendant Hazel was an incompetent operator. The distinction between the negligence of the operator and his incompetency to operate the crane is clear in law. Hazel’s experience was undisputed, and no evidence whatever was presented to establish his general incompeteney. In the circumstances it is impossible to say on which basis the jury’s verdict was predicated. We are, therefore, constrained to order a new trial. On appeal by plaintiff, the amended judgment, in so far as it dismisses the complaint as against defendant Hazel, is modified by adding thereto the words “ but without prejudice,” and as so modified unanimously affirmed, with costs to defendant Hazel. The order dated June 3, 1933, is modified accordingly. Present ■— Lazansky, P. J., Young, Carswell, Seudder and Johnston, JJ.