Farrell v. City of Middletown — 172 N.Y. 666

Majority

p. 666

Malachi Farrell, Appellant, v. City of Middletown, Respondent.

Headnote

Farrell v. City of Middletown, 56 App. Div. 535 , reversed.

(Argued November 25, 1902;

decided December 9, 1902.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 16, 1901, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and an order denying a motion for a new trial.

William Vcmamee and Thomas Watts for appellant.

W. T. Shaw and W F. O'Weill for respondent.

We are of the opinion that the evidence presented a question of fact as to the negligence of the defendant, which the court should have submitted to the jury, and that it erred in nonsuiting the plaintiff upon that ground.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Parker, Ch. J., Gray, O’Brien, Martin, Vann, Cullen and Werner, JJ., concur.

Judgment reversed, etc.