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Stipulation Waiving Certification.
Pursuant to Section 170 of the Civil Practice Act and Rule 234 of the Rules of Civil Practice, it is hereby
STIPULATED that the foregoing printed record consists of true and correct copies of the notice of appeal, judgment roll, and case and exceptions as settled, and the whole thereof, now on file in the office of the Clerk of the County of Kings; and certification thereof by said Clerk, pursuant to Section 616 of the Civil Practice Act, is hereby waived.
JOSEPH F. RUGGIERI,
Attorney for Plaintiff-Appellant.
Attorney for Defendant-Respondent.
Order Filing Record in Appellate Division.
Pursuant to Section 616 of the Civil Practice Act, it is hereby
ORDERED that the foregoing printed record be filed in the office of the Clerk of the Supreme Court, Appellate Division, Second Department.
Dated, New York, August.1.6., 1931.
J. S. C.
CASE PRESS, 535 Pearl St., N. Y.
Tel. Barclay 7-2670
Argued by THOMAS A. SHAW.
New York Supreme Court
APPELLATE DIVISION—SECOND DEPARTMENT.
CHARLES S. BONANNO,
BRIEF FOR APPELLANT.
Plaintiff appeals from the order of Hon. MITCHELL May, Justice, made and entered in the office of the Clerk of the County of Kings on June 13, 1931, which order set aside a verdict of the jury in favor of the plaintiff and against the defendant in the sum of $5,000, and granted a new trial to the defendant (5).
Facts. The accident happened on August 1, 1927, at about 11 A. M., at the northwest corner of 14th Street and Third Avenue, in the Borough of Manhattan, City and State of New York (37). Plaintiff testified that he was standing on the northwest corner of Third Avenue and 14th Street with three or four other people and when the “automobiles stopped from going up and down” he crossed with the rest of the people (37, 38, 108, 109, 112). While they stood still waiting on the sidewalk quite a number of automobiles went by and “when they stopped going then is the time we started to cross” (109). He was about two or three feet from the first rail when he saw the defendant's automobile approaching from 14th Street and it was then 100 feet away (51, 113). After he had looked and saw where the automobile was he kept going (122), as he thought he had time to cross (123, 124). The other people were ahead of him (115). He passed the first rail (51) and was near the second rail (38, 124) when he was struck by the front part of the car on the side nearest to the sidewalk that he was going from (116, 117). He was not working that day, as he had worked the previous Saturday afternoon (103, 136), and he was just out for a walk (139). There was a policeman on the right side of him in the center of the intersection (110). There were automobiles between 13th Street and 14th Street but they were not moving at the time, they were stopped (112). The automobile was going fast (123).
The defendant testified that he was driving downtown on Third Avenue on the downtown car tracks and as he was approaching the corner of 14th Street he saw the traffic policeman raising his hand with his whistle right in his hand, and he made an effort to stop his car when the policeman waved for him to come on (153, 154). There were three people standing near the track (156, 161), and he had observed these people from the time that his car was approaching 15th Street, a block away (161, 192). They were standing about two or three feet from the rail (194). He cannot identify the plaintiff as one of these persons but saw a man and a woman (181). When he saw these people he came almost to a stop (204). When his car reached exactly where the patrolman was, the officer told him to stop and he looked back and saw a man on the ground. He backed his car and the officer walked over and the officer and he lifted the man and placed him in the car. The plaintiff was lying on the right side running along the same place where the people were standing (155-157). The plaintiff was 15 or 20 feet back of his car (157). He never saw the plaintiff in front of him and no one was crossing at the time (159, 160). He did not know that anyone had been hurt or struck (179). The officer was in the center of the tracks on defendant's right side on 14th Street west of the first downtown rail of Third Avenue (207) and he stopped his car on the northerly rail of 14th Street 20 feet from the northwest corner (208). When he and the officer lifted the man up he was unconscious and he had a bundle under his arm (162, 163, 174). Although he stated in his report to the Motor Vehicle Bureau that the plaintiff “seemed to fall against my right rear mudguard” (397), he did not see this (206), and he does not know how the plaintiff fell (156). He was approaching 14th Street at eight miles an hour and could stop his car within one foot (203). The plaintiff was at the northwest corner in the path where pedestrians pass (219). The accident happened 20 feet from the middle of 14th Street at the corner (217) and his car came to a stop 20 feet from the corner, near the first rail of 14th Street (208, 224). In his report of the accident to the Motor Vehicle Bureau he stated that the officer was less than 10 feet away at the time of the accident and he stopped his car immediately (397). He admitted on cross-examination that his car went 20, 22 or 24 feet beyond the point where the plaintiff was before it came to a stop (226, 228). At the hospital the plaintiff complained of a pain in his left hip or left leg and his left shoulder (172).
Officer Carney, called by the defendant, testified that Officer Eckardt's name does not appear on the police card as a witness, although he was in the station house with the defendant (241). If he was a witness he would give his name (242).
Officer Eckardt, called by the defendant, testified that he was on traffic duty at 14th Street and Third Avenue on the day of the accident (247). He did not have his memorandum book with him and had not had time to refresh his recollection (243). He was talking about 10 minutes in the hall to defendant's counsel, his assistant and the defendant (300), and Captain Brennan, assistant to plaintiff's counsel, spoke to him in the presence of Mr. Crossan, the assistant to defendant's counsel, and the defendant for about a minute and onehalf or two minutes (299, 300). Brennan asked him if he remembered the accident and if he was going to testify as the other officer did (278, 279). He did not recall that plaintiff had a bundle with him (271). He did not help pick up the plaintiff and when he got there the plaintiff had already been put on the sidewalk (273, 293). He was sure about that (274, 293). He saw several persons pick up the plaintiff (274). He did not see the accident and does not know when it happened (276, 277) and cannot tell whether any people were near the rail a moment or so before the accident happened (275).
Court was then adjourned to enable this witness to obtain his notes, which he then produced in court on the adjourned day (277). He could not very well picture the accident, as he was such a