Harrington v. Schults Bread Co. — 219 A.D. 770

Majority

p. 770

First Department,

February, 1927.

Timothy J. Harrington, Appellant, v. Schults Bread Co., Inc., Respondent.

Headnote

Negligence—judgment in favor of defendant reversed on ground that evidence does not prove defense that negligence was that of independent contractor.

Appeal from a judgment of the Supreme Court, entered in thé New York county clerk’s office on July 1, 1926, dismissing the complaint at the close of plaintiff’s case upon a trial at the New York Trial Term.

On the present state of the record, there is no proof supporting the defendant’s contention that an independent contractor was engaged

p. 771

in the work, the negligent performance of which is shown to have caused the accident. The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event, with leave to the defendant to apply to the court at Special Term to amend its answer so as to deny, if it be so advised, the allegations of the 2d paragraph of the complaint, instead of admitting them as it now does. Present — Dowling, P. J., Merrill, Martin, O’Malley and Proskauer, JJ.; Dowling, P. J., and Proskauer, J., dissent and vote to affirm on the ground that there is no proof of negligence on the part of the defendant. Judgment reversed and new trial ordered, with costs to the appellant to abide the event, with leave to the defendant to apply to the' court at Special Term, to amend its answer so as to deny, if it be so advised, the allegations of the 2d paragraph of the complaint.