Roth v. Heer Contracting Co. — 238 A.D. 798

Majority

p. 798

Louise Roth, as Administratrix, etc., of Lawrence Roth, Deceased, Appellant, v. The Heer Contracting Co., Inc., and Frederick J. Droge, Respondents.

Judgment dismissing complaint reversed on the law and a new trial granted, costs to appellant to abide the event, on the ground that as to the proximate cause of decedent’s death there was a question of fact which should have been submitted to the jury. Lazansky, P. J., Seudder and Davis, JJ., concur; Carswell, J., with whom Kapper, J., concurs, dissents on the ground that as to the cause of death

p. 799

there is no proof which excludes causes other than drowning. An autopsy would have readily revealed the true cause of death.