Smith v. State of New York

Upon the previous trial of this claim we held that the claimant had failed to establish any negligence on the part of the State’s employee (Smith v. State of New York, 148 Misc. 524).

Upon appeal to the Appellate Division, Fourth Department, our decision was reversed with the statement “ the finding that the *850State’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 damages and “ no finding as to the…