Jones v. Poinciana Realty Corp. , 268 A.D. 877 ( 1944 )

Defendant, the owner of an apartment house, appeals from a judgment in favor of one of its tenants for personal injuries sustained through being scalded while in his bathtub. Judgment reversed on the law and a new trial granted, with costs to abide the event. It was error for the trial court to receive, over objection, opinion testimony to the effect that the sudden gush of scalding water which caused plaintiff’s injuries could have been caused by the sudden drawing off of a large quantity of cold water by other tenants in the house, or by the sudden clearing up of a clogged condition in plaintiff's hot-water pipe. That testimony was withgut factual support in the evidence and was prejudicial. (White v. Prudential Insurance Co., 120 App. Div. 260, 263; Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 86, 90, 91.) The court has considered the questions of fact and-has determined that it would not grant a new trial upon those questions were it not for the error alluded to. Close, P. J., Hagarty and Carswell, JJ., concur; Aldrich, J., votes to reverse on the facts and to grant a new trial, with costs to abide the event, on the ground that the verdict is against the weight of the evidence; Lewis, J., not voting.