Caccetta v. Oakley

In an action for-damages for death by wrongful act, neglect or default, plaintiff appeals from a judgment dismissing his complaint on the merits, [889] entered upon a jury verdict in favor of the defendant. Judgment unanimously affirmed, with costs. Plaintiff contends (a) that the verdict is against the weight of the evidence and (b) that the trial court erred in permitting a witness for the defendant to state as her reason for withdrawing an action that she had brought for damages for personal injuries sustained in the same accident that she “ could not see perjuring myself to a lie,” which reason she amplified in a way detrimental to the plaintiff. As to the weight of the evidence, we find that it was so strongly with the defendant upon the issue as to the latter’s liability that a verdict for the plaintiff could not have been permitted to stand. The ruling referred to was erroneous; but the error was harmless under the circumstances and does not constitute ground of reversal since the plaintiff was not entitled to prevail in any event. (Von Au v. Magenheimer, 126 App. Div. 257, 269; affd., 196 N. Y. 510; Gotham Constr. Corp. v. City of New York, 233 App. Div. 699, 700.) We may disregard the error, also, under the provisions of Civil Practice Act, section 106. Present — Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ.