Cohen v. St. Regis Paper Co.

I respectfully dissent. “[T]he failure of the defendant to except to the charge of the court is neither binding nor controlling on this court since the action should have been dismissed on the motion made at the end of the plaintiff’s case and renewed at the close of all of the evidence.” (Greelish v New York Cent. R. R. Co., 29 AD2d 159,161, affd 23 NY2d 903.)

In my view, plaintiff failed to sustain his burden of proving that defendant, Red Diamond, was negligent, and further, that the negligence, if any, was the proximate cause of decedent’s death. The evidence shows, not only from the…