129 N.Y.S. 35 | N.Y. App. Div. | 1911
The action,, begun in 1907, is to .recover possession of lot 50 in Flatbush, facing on Washington avenue. In the rear of
Therefore, it is concluded that the court erred in excluding evidence that the premises were vacant, although perhaps that evidence was first and last supplied, and in dismissing the complaint without submitting the question of occupancy to the jury, and also in imposing upon the plaintiff rather than the defendant, who gave no evidence, the burden of showing that there was no such occupancy as required that.the notice .should be given pursuant to the statute.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Hirsohberg and-Rich, JJ., concurred ; Carr, J., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.