242 A.D. 643 | N.Y. App. Div. | 1934
Judgment reversed on the law and a new trial granted, costs to appellant to abide the event. In so far as defendant Rosoff Subway Construction Company is involved, we are of opinion that the issues were sufficiently defined by the pleadings at the time the complaint was dismissed, “ Unless it is obvious that under no circumstances and in no view of testimony that might be adduced can the plaintiff prevail, the practice of dismissing on the opening of counsel alone should not be encouraged.” (Malcolm v. Thomas, 207 App. Div. 230.) The dismissal on the ground that the notice served on the city of New York was defective was erroneous. The sufficiency of the notice as to the “ time and place at which the injuries were received ” was not questioned by respondent city. It was immaterial for the purpose of the motion how the obstruction was placed in the public highway. Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur.
