Opinion
March 27, 1962
Judgment unanimously reversed and vacated, on the facts and the law and as a matter of discretion, and a new trial ordered, with costs to the appellant to abide the event. In this nonjury action for wrongful death, the issue presented is close. Usually the judgment arrived at by the trial court is not to be disturbed but here the record contains statements by the trial court which reveal misapprehension of important phases of the testimony. This being a nonjury case, this court would have the power and, in many cases, the duty, to make findings and render the verdict that the trial court should have pronounced ( Bruno v. Kosnac, 13 A.D.2d 650, and cases cited). However, not every case lends itself to this procedure ( Power v. Falk, 15 A.D.2d 216) and we find that the interests of justice would best be served by a new trial.
Concur — Rabin, J.P., Valente, McNally, Stevens and Steuer, JJ.