MULLERY v. RO-MILL CONSTR. CORP.


54 N.Y.2d 888 (1981)

Theresa Mullery, Individually and as Executrix of Michael Mullery, Deceased, Appellant, v. Ro-Mill Construction Corp. et al., Respondents.

Court of Appeals of the State of New York.

Decided October 15, 1981.


Attorney(s) appearing for the Case

Emilio Nunez and Pamela Anagnos Liapakis for appellant.

William F. McNulty, Harold M. Foster and Anthony J. McNulty for respondents.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.


MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for review of the facts (CPLR 5613). Under the charge given by the trial court the jury was instructed to determine whether the decedent was so intoxicated as to be rendered incapable of understanding or appreciating the danger which confronted him. In view of this charge, to which no exception was taken,...

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