
    (May 29, 1963)
    James Como, an Infant, by His Guardian ad Litem, Peter Como, et al., Respondents, v. Frank Bastolla, Appellant.
   — Judgment appealed from unanimously reversed on the law, and a new trial ordered in the exercise of discretion and in the interests of justice, with costs to abide the event. Reversible error was committed in receiving into evidence the record of previous traffic infractions which the trial court considered as “both relevant and material” to its determination (cf. De Btasio v. Janssen Dairy Corp., 279 N. Y. 501). The issue of negligence in this case was to be determined by the court on the evidence before it and not on the basis of a presumption raised or created by reason of the prior infractions (Flannagcm v. Brown, 211 App. Div. 694). Where an appeal from a judgment in a nonjury case is not affirmed, this court generally will grant the judgment which the court below ought to have granted (Civ. Prae. Act, § 584, subd. 2; Greater N. Y. Mut. Ins. Go. v. Perry, 6 A D 2d 432). The error referred to prevented a correct determination on the facts and we do not in .this case deem the record an adequate basis for the determination of the factual issues involved. In the interests of justice, a new trial should be directed. Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.  