MASCIARELLI v. POWELL


30 A.D.2d 342 (1968)

Anthony Masciarelli, Appellant, v. Walter L. Powell, Doing Business as American Fence and Protection Company, Respondent

Appellate Division of the Supreme Court of the State of New York, First Department.

July 11, 1968.


Attorney(s) appearing for the Case

Leland Stuart Beck for appellant.

William F. McNulty of counsel (Samuel F. Simone, attorney), for respondent.

BOTEIN, P. J., EAGER and RABIN, JJ., concur with McNALLY, J.; CAPOZZOLI, J., dissents in part in opinion.


McNALLY, J.

This is an appeal by plaintiff from a judgment of dismissal after a jury trial of a personal injury action. The jury returned a verdict in the sum of $175,000. The court granted defendant's motion to set aside the verdict and dismiss the complaint. We hold the Trial Judge properly dismissed the complaint because plaintiff failed to establish a case of actionable negligence, and plaintiff was guilty...

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