Virzi v. Kings County Lighting Co.

Action for personal injuries suffered by the plaintiff wife as a consequence of being asphyxiated by gas because of the alleged negligence of the defendant lighting company. . Also companion action of the plaintiff husband for expenses and loss of services. Motion by plaintiffs pursuant to an order of the trial court directing that plaintiffs’ exceptions be heard in the first instance by the Appellate Division, pending the decision of a motion for a new trial, upon the ground that certain rulings respecting the receipt of evidence were erroneous. Plaintiffs’ exceptions unanimously sustained so that a new trial may be granted, with costs to the plaintiffs to abide the event. The sustaining of defendant lighting company’s objection to the testimony of the witness Anna Virzi, respecting the alleged telephone conversation at nine a. m. on August 31, 1935, was erroneous. She should have been permitted to testify to that conversation. (Ratomski v. Quittner, 214 App. Div. 186; Orlando v. Great Eastern Casualty Co., 91 Misc. 539, 543.) The ruling of the trial court that the evidence of repairs of the service pipe was not some proof of control of that pipe by the defendant lighting company was erroneous. (Morrell v. Peck, 88 N. Y. 399; Bateman v. N. Y. C. & H. R. R. R. Co., 47 Hun, 429.) Present — Lazansky, P, J., Carswell, Johnston, Adel and Close, JJ.