273 A.D. 947 | N.Y. App. Div. | 1948
The complaint appears to have been dismissed at the end of
the plaintiffs’ ease solely on the testimony of one of plaintiffs’ witnesses who testified that he had not observed any defect in the ceiling between the time it was last repaired and the time of the accident. Any conflict in evidence that might have resulted by that testimony was a matter for the jury to resolve. (Ochs v. Wood, 221 N. Y. 335.) We find upon an examination of the record that sufficient evidence was adduced by the plaintiffs to establish a prima facie case and that the motion to dismiss the complaint should not have t een granted.
Since a new trial is to be had it is well to point out that the trial court should not have permitted the defendant’s counsel to question one of the plaintiffs as to the workmen’s compensation payments she had received. (Regan v. Frontier Elevator & Mill Co., 211 App. Div. 164.)
The judgment appealed from should therefore be reversed and a new trial ordered, with costs to the appellants to abide the event.
Peck, P. J., Glennon, Dore, Cohn and Van Voorhis, JJ., concur.
Judgment unanimously reversed and a neiv trial ordered, with costs to the appellants to abide the event.