Levy v. Ben's Appetizing Grocery Shop, Inc.

246 A.D. 588

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1935
• Status: Published

Opinion

Action for personal injuries sustained by plaintiff Etta Levy, by reason of her falling through an opening in the floor leading to the cellar of a store operated by defendant, the trap-door of which was open, and for loss of services by her husband, Leo Levy. Judgment unanimously reversed and a new trial ordered with costs to the appellant to abide the event, on the ground that it was error for the court to refuse to charge the following requests: “ That if the jury finds that that trap-door was not opened while the plaintiff was standing behind that counter for those two minutes, as she has testified, then the accident has not happened substantially in the manner in which she has testified, and in that event, they must find for the defendant. * * * That merely submitting the case to them and denying my motions does not mean that the plaintiff must recover.’’ Present — Martin, P. J., Merrell, Townley, Glennon and Untermyer, JJ.