Clifford v. Ruocco

I concur in the judgment of reversal but cannot agree with the reasoning of the majority on which it bases its conclusion that the action should be retried on all the issues. It is obvious that the majority has not analyzed the decisions which have given consideration to this problem.

From a study of the cases it is apparent that the function of the appellate court in determining whether or not a new trial should have been granted, and whether some or all of the issues should be retried, varies with what has happened in the trial court. This must be true if we are to follow *331the traditional…