Fey v. New York Dock Co. — 142 N.Y.S. 626

Majority

p. 626

FEY v. NEW YORK DOCK CO.

(Supreme Court, Appellate Division, Second Department.

June 27, 1913.)

Headnote

Appeal and Error (§ 1002^[1] )—Review—Verdicts.

Where the evidence, though conflicting, raised a question for the jury, its determination thereon should not be disturbed on appeal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]

Appeal from Trial Term, Kings County.

Action by Pauline H. Fey, as administratrix of the estate of Frederick Fey, deceased, against the New York Dock Company. From a judgment for plaintiff and an order denying its motion for new trial, defendant appeals. Affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, CARR, and PUTNAM, JJ.

James J. Mahoney, of New York City (George J. Stacy, of New York City, on the brief), for appellant.

Adolph Feldblum, of Brooklyn, for respondent.

In this action, which was tried subsequently to the case of Fogarty v. New York Dock' Company, decided herewith, evidence was given as to the cause of the fall of the gate. The absence of such evidence in the Fogarty Case constrained us to hold that a nonsuit was properly granted. Upon the evidence here presented, we think that it was a question of fact for the jury whether defendant was negligent in leaving the gate in the position in which it was just before it fell. Although there is a conflict of evidence as to its exact position and as to the length of time in which it had there remained prior to the date of the accident, these disputed questions of fact were properly submitted to the jury, and their verdict thereon should not be disturbed.

Judgment and order denying motion for new trial affirmed, with costs.