Giovagnoni v. Murray

Appellant’s contention that the charge of the court was highly objectionable and erroneous is well founded. However, upon all the evidence we find that appellant failed to make out a prima facie case. As appellant would not be entitled to prevail in any event, the judgment in favor of respondent should be affirmed, with costs. (Gotham Construction Corp. v. City of New York, 233 App. Div. 699; Wood v. Wyeth, 106 id. 21, 24.)

Martin, P. J., Townley, Cohn and Callahan, JJ., concur; O’Malley, J., dissents and votes to reverse and grant a new trial.