Cross v. Town of Harmony

257 A.D. 1029, 13 N.Y.S.2d 681, 1939 N.Y. App. Div. LEXIS 8955

Opinion

Judgment affirmed, without costs of this appeal to either party. Memorandum: We find a fan question of fact was presented by the evidence as to the negligence of the defendant and the freedom of the plaintiff from contributory negligence, and that the verdict is not against the weight of the evidence. Costs are not awarded as the plaintiff has been granted an order to sue as a poor person. All concur, except Taylor, J., who dissents and votes for reversal on the facts and for granting a new trial, and Dowling, J., who dissents and votes for reversal on the law and facts and for granting a new trial. (The judgment is for defendant in an action for damages for personal injuries sustained by reason of being struck by an overhanging limb of a tree.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.