Summary
In Marcus v Manhattan Beach Parks Corp (246 App. Div. 331) the First Department reversed a judgment which had dismissed the complaint at the end of plaintiff's case.
Summary of this case from Batton v. ElghanayanOpinion
January 24, 1936.
Appeal from Supreme Court of New York County.
Benjamin Cohen of counsel [ Herman S. Stern, attorney], for the appellant.
Edward A. Harmon of counsel [ William E. Lowther, attorney], for the respondent.
Present — MARTIN, P.J., TOWNLEY, GLENNON, UNTERMYER and DORE, JJ.; MARTIN, P.J., and DORE, J., dissent and vote for affirmance.
From the plaintiff's proof and the photographs in evidence, the jury could have found that the defect which caused the plaintiff's fall was the result of gradual wear or deterioration and that consequently the defendant was chargeable with constructive notice of the condition.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment dismissing the complaint at the close of plaintiff's case reversed and a new trial ordered, with costs to the appellant to abide the event.