Majority
p. 225SMITH v. JOLINE et al. (Supreme Court, Appellate Term. June 29, 1911.) Argued before SEABURY, GUY, and BIJUR, JJ.
Headnote
Trial' (§ 384[1] )—Dismissal.Where there was evidence sufficient to have warranted the submission of a case to the court on the question of plaintiff’s freedom from contributory negligence and of defendants’ negligence, it was error - to dismiss the complaint.
[Ed. Note.—For other cases, see Trial, Cent. Dig. § 900; Dec. Dig. § 384.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Third District.
Action by Alfred M. Smith against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. From a Municipal Court judgment dismissing the complaint, plaintiff appeals.
Reversed, and new trial ordered.
Appell & Taylor (Albert J. Appell and George H. Taylor, of counsel), for appellant.
Masten & Nichols (William M. Stout, of counsel), for respondents.
Plaintiff appeals from a judgment rendered at the close of his ca^e dismissing the complaint. Viewing the testimony given on the part of the plaintiff in the light most favorable to him, as we must in case of a nonsuit, there was evidence given sufficient to have warranted its submission to the determination of the court
p. 226
upon the question of the plaintiff’s freedom from contributory negligence, and also as to defendants’ negligence. It was, therefore, error to dismiss the complaint.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.