McEvoy v. City of New York

26 A.D.2d 689, 272 N.Y.S.2d 1012, 1966 N.Y. App. Div. LEXIS 3612

Opinion

In a negligence action to recover damages for personal injury, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered June 16, 1965 after a jury trial on the issue of liability, in the defendant’s favor upon the court’s dismissal of the complaint at the close of plaintiff’s case. Judgment affirmed, without costs. No opinion. Beldock, P. J., Ughetta and Hill, JJ., concur; Brennan and Hopkins, JJ., dissent and vote to reverse the judgment and to grant a new trial, with the following memorandum: It is our opinion that, giving plaintiff the benefit of every reasonable inference, as we must, the issues of contributory negligence and of negligence were for the jury and that it was error to dismiss the complaint (cf. Lubelfeld v. City of New York, 4 N Y 2d 455, 460; Wilkes v. City of New York, 308 N. Y. 726; Brown v. Simab Corp., 20 A D 2d 121, 124).