McLean v. Triboro Coach Corp.

275 A.D.2d 844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 1949
• Status: Published

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.