McLean v. Triboro Coach Corp.

275 A.D.2d 844

Opinion

The plaintiff, having been nonsuited, is entitled to the benefit of every fact that the jury could have found from the evidence, in the most favorable view that a jury would be warranted in taking of that evidence, as well as every reasonable inference that may be drawn therefrom. (McNally v. Phoenix Ins. Co., 137 N. Y. 389, 394; Kraus v. Birnbaum, 200 N. Y. 130, 133; African Metals Corp. v. Bullowa, 288 N. Y. 78, 81; Pollard v. Trivia Bldg. Corp., 291 N. Y. 19, 22.) So viewed, the proof adduced was sufficient to warrant a finding by the jury that the accident occurred as alleged in the complaint and bill of particulars and there was presented a prima facie case within plaintiff’s pleadings which should not have been taken from the jury. Nolan, P. J., Carswell, Sneed, Wenzel and MacCrate, JJ., concur.