Opinion
October 21, 1974
On July 9, 1973, this court (1) reversed, on the law, an interlocutory judgment of the Supreme Court, Suffolk County, dated July 19, 1972, in favor of plaintiff on the issue of liability, after a trial on that issue only, upon a special jury verdict that defendant was liable only for violation of section 240 Lab. of the Labor Law, and (2) dismissed the complaint; thereafter, on June 19, 1974, the Court of Appeals reversed the order of this court and remitted the case to us for a determination of the facts, if any, raised in this court ( Munz v. Prestwick Press, 42 A.D.2d 734, revd. 34 N.Y.2d 847). This court now reverses the interlocutory judgment, on the facts, and grants a new trial, with costs to abide the event. In our opinion, the verdict of the jury was contrary to the weight of the evidence. Latham, Acting P.J., Christ and Benjamin, JJ., concur; Shapiro and Munder, JJ., dissent and vote to affirm, with the following memorandum: The Court of Appeals remitted this case to this court for "determination of questions of fact, if any," raised on the appeal to this court. When the case was before this court, appellant raised no question of fact. Instead, in its brief, it said merely that a single question of law was presented. We, therefore, vote to affirm.