Smith v. State of New York

Upon the first trial of this claim we found that claimant had failed to establish any negligence on the part of the State’s employee and dismissed the claim upon the merits. (Smith v. State, 148 Misc. 524.)

Upon appeal to the Appellate Division, Fourth Department, our decision was reversed with the statement that “ the finding that the State’s employee, Archie Kelsey, was free from negligence causing the accident which resulted in the death of Gertrude D. Smith, claimant’s intestate, was against the weight of evidence,” and a new trial ordered for the reason we had made no assessment of…