Del Rey v. Ramaglia

Judgment dismissing the complaint at the close of plaintiff’s case (confined to the “issue of liability”) unanimously reversed and a new trial ordered, with costs to the appellant to abide the event. The issue of contributory negligence was a question of fact to be decided by the court after a full trial (Foley v. State of New York, 265 App. Div. 682 ; Crowley v. Fifth Ave. Coach Co., 249 App. Div. 408 , affd. 276 N. Y. 496 ). The rule that at the completion of plaintiff’s case every inference favorable to the plaintiff should be drawn was not followed. Concur — Peck, P. J., Rabin, Cox, Frank and Valente, JJ.