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AM. SUR. CO. v. MARLAB CORP.

4 N.Y.2d 851 (1958)

American Surety Company, Respondent, v. Marlab Corporation, Appellant.

Court of Appeals of the State of New York.

Decided April 3, 1958.

Attorney(s) appearing for the Case

Ellsworth Van Graafeiland for appellant.

Daniel G. Kennedy for respondent.

Chief Judge CONWAY and Judges DYE, FULD, FROESSEL, VAN VOORHIS and BURKE concur in Per Curiam opinion; Judge DESMOND dissents and votes to affirm upon the ground that the errors, if any, do not justify a reversal (Civ. Prac. Act, § 105).

Per Curiam.

In our opinion, the instruction given by the trial court in answer to the jury's request was prejudicial error. It allowed the jury to excuse contributory negligence by conduct that may not have been in accordance with that required of a reasonably prudent person under the particular circumstances.

Additional errors include the failure of the trial court...

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