Opinion
April 7, 1986
Appeal from the Supreme Court, Nassau Court (Roncallo, J.).
Resettled judgment reversed, on the law, judgment vacated, and new trial granted.
One bill of costs is awarded to abide the event of the new trial.
A new trial is required because the trial court failed to instruct the jury that the plaintiff had the burden of proof on the issue of liability (see, Whitlatch v. Fidelity Cas. Co., 149 N.Y. 45). The pivotal issue at trial was whether the parties agreed to convert a demand obligation into an installment loan and an interrogatory was posed to the jury on that issue. The failure to charge the jury as to the plaintiff's burden of proof with reference to the alleged agreement was thus fatal.
We reject the attack on the sufficiency of the plaintiff's proof of damages, but under all of the circumstances we conclude that a full retrial of all issues is warranted. Lazer, J.P., Bracken, Brown and Kooper, JJ., concur.