Rosa v. City of New York

Judgment unanimously reversed on the law and on the facts, and a new trial ordered, with $50 costs to appellant. Plaintiff’s claim of negligence is that she was caused to fall because of a hole in the sidewalk. While the claim may be of doubtful merit and, under the circumstances of this case, the burden of proving liability on the part of the defendant a difficult one, such possibilities afford no reason to reject this appeal. Plaintiff is entitled to a fair and impartial opportunity to present her case. This she did not receive (Whitehead V. Mutual Life Ins. Co., 264 App. Div. 647 ; Kamen Soap Prods, v. Prusansky <fc Prusansky, 11 A D 2d 676 ; Buckley v. 2570 Broadway Corp., 12 A D 2d 473 ). Nor can we conclude that the exclusion of the proffered photograph was harmless error in light of the court’s comment at the time of rejection. Concur - McNally, J. P., Stevens, Eager, Steuer and Staley, JJ.