Fink v. 37 West 36th Street Co.

Per Curiam. The facts adduced by the plaintiff upon the trial were sufficient to establish a prima facie case, and, consequently, the court should not have dismissed the complaint. We are in accord, however, with the rulings of the court on the question of insurance and replacement of the glass. While that evidence may be persuasive on the question of control, nevertheless, we do not deem it relevant. While it is true that the trial justice, in setting aside the verdict which was rendered upon the first trial, stated that such evidence might be obtained upon an examination before trial, in affirming the order setting aside the verdict upon the first appeal (242 App. Div. 624), this court did not intend thereby to give the impression that it agreed in all respects with the opinion as written. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. Present'—Martin, P. J., O’Malley, Glennon, Untermyer and Dore, JJ.; Dore, J., dissents and votes for affirmance.