Hertz v. Montlack

In a negligence action to recover damages for personal injury, the plaintiff appeals from a judgment of the Supreme Court, Queens County, entered November 23, 1964 after a jury trial, upon the court’s decision, in favor of the defendants, dismissing the complaint as a matter of law at the end of plaintiff’s ease. Judgment reversed on the law and a new trial granted, with costs to plaintiff to abide the event. No issues of fact were considered. In our opinion, under the circumstances here, jury questions were presented as to defendants’ negligence and plaintiff’s freedom from contributory negligence (Axelrod v. Krupinski, 302 N. Y. 367; Faso v. City of New York, 18 A D 2d 1005). Plaintiff having made out a prima facie ease, it was error to dismiss the complaint as a matter of law. Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.