
    Fred H. Dittman, Respondent, v. Edison Electric Illuminating Company, Appellant.
    Second Department,
    May 5, 1911.
    Evidence — expert testimony — conclusions of expert.
    ■ In an action for personal injuries sustained by the breaking of a belt used in a power house, it is error to allow an expert witness to testify to á conclusion that the belt was unsafe for use at the time of the accident. This, because where the jurymen can form a proper conclusion after facts known only to the experts have been disclosed to them it is their province to draw the conclusion.
    
      It seems, however, that where the conclusion depends as much upon expert knowledge as does the existence of the facts, the rule is otherwise.
    Appeal by the defendant, The Edison Electric Ilhiminating Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of July, 1910, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 12th day of July, 1910, denying the defendant’s motion for. a new trial made upon the minutes.
    
      H. Snowden Marshall [James. J. Mahoney with him on the brief], for the appellant.
    
      William O. Cooke [Howard O. Wood with him on the brief],’ for the respondent.
   Hirschberg, J.:

The plaintiff was injured in February, 1901, by the breaking of a belt, while working in the defendant’s employ in its power house in the borough of Manhattan. The action based on the defendant’s negligence was tried in January, 1903, and the plaintiff recovered a verdict which was reversed by this court because an expert witness was permitted to testify, that the belt was unsafe, instead of testifying to the facts in relation to it, from which the jury could infer its unsafe condition. (See Dittman v. Edison Electric Illuminating Co., 87 App. Div. 68, 71.) On the second trial a verdict was directed for the defendant, the judgment entered thereon, however, being afterward reversed by this court on the ground that the facts proven required the submission of the controversy to a jury. (See Dittman v. Edison Electric Illuminating Co., 125 App. Div. 691.) On the latest trial, now under review, the same error was repeated which occurred in the first instance, and an expert witness was allowed to testify to the conclusion that the belt in question was unsafe for use and could not have been fit at the time of the accident. The evidence was condémned on the first appeal as being within the ruling in the case of Dougherty v. Millihen (163 N. Y. 527), to the effect that where the jury can form a proper conclusion after facts known only to experts have been disclosed to them, it is the jury’s province to draw the conclusion. Where, however, the conclusion depends as much upon expert knowledge as does the existence of the facts, the rule is otherwise. The learned counsel for the respondent argue in their brief that the case of Dougherty v. Milliken (supra) does not control, and insist that the case at bar is one where the conclusion to be drawn from the facts is matter of expert knowledge as well as are the facts themselves. We held otherwise on the first appeal, and the rule there laid down must be regarded in this case as controlling. It seems quite clear on re-examination that the province of the experts should be limited to proof of the condition of the belt, its ability to resist strain, the likelihood of its breaking in its condition when subjected to the use to which it was put at the time of the accident, and generally all the facts in relation to it, from which the jury can infer whether or not it would be, or was, a sufficient appliance.

The judgment and order must be reversed-.

Jenks, P. J., Burr, Carr and Woodward, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  