Wheeler v. Deutch — 242 A.D. 641

Majority

p. 641

Ethel L. Wheeler, Appellant, v. Benjamin Deutch and Others, Individually and as Copartners Doing Business under the Firm Name and Style of Municipal Food Markets of New York, and Another, Respondents. Gaston Wheeler, Appellant, v. Benjamin Deutch and Others, Individually and as Copartners Doing Business under the Firm Name and Style of Municipal Food Markets of New York, and Another, Respondents.

Judgment reversed on the law and a new trial granted, with costs to appellants to abide the event, on the ground that the question of defendants’ negligence was one of fact to be determined by the jury by reasonable inferences drawn from the evidence, and on the authority of Hughes v. Borden’s Farm Products Company, Inc. ( 252 N. Y. 532 ); Jensen v. Great A. & P. Tea Co. ( 240 App. Div. 1008 ); Keegan v. Hohorst (235 id. 871); Ellis v. Friedlander (198 id. 57); Graham v. Bauland Co. (97 id. 141); Shaw v. Webber ( 79 Hun, 307 ; affd., 151 N. Y. 655 ). Young, Tompkins and Davis, JJ., concur; Lazansky, P. J., and Kapper, J., concur in result, with the following memorandum: In view of testimony that the beans had been on the floor for fifteen to twenty minutes, there was a question of fact for the jury on the negligence of either or both of the defendants.

Cases cited

Hughes v. Borden's Farm Products Co. 252 N. Y. 532 N.Y. 1929-10-22 p. 641
Claim of County of Oneida v. Bartholomew 151 N. Y. 655 N.Y. 1897-01-19 p. 641