Glabman v. Union Railway Co. — 106 N.Y.S. 1089

Majority

p. 1089

GLABMAN v. UNION RY. CO. OF NEW YORK CITY.

(Supreme Court, Appellate Term.

November 29, 1907.)

Headnote

Appeal—Dismissal of Complaint—Review.

Where a complaint is dismissed on plaintiff’s proof alone, he is entitled upon appeal to the benefit of all favorable inferences deducible therefrom, and it is to be taken as true.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error § 4024.)

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by Morris Glabman against the Union Railway Company of New York City. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ.

Gainsburg & Solomon, for appellant.

William E. Weaver, for respondent.

The plaintiff brought this action to .recover damages for personal injuries. It was tried before a jury, and at the close of the plaintiff’s case the court, upon motion of defendant’s counsel, dismissed the complaint upon the ground that the plaintiff failed to show himself free from contributory negligence.

Where the plaintiff’s complaint is dismissed upon his proof alone, he is entitled upon appeal to the benefit of all favorable inferences that can be drawn therefrom, and it is also to be taken - as true. Applying that rule, the evidence of the plaintiff was such as to require its submission to the jury upon the question of the negligence of the defendant and the contributory negligence of the plaintiff.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.