Opinion
December, 1932.
Judgment and order reversed on the law and a new trial granted, costs to appellant to abide the event. We are of opinion that the doctrine of res ipsa loquitur applies, that actual or constructive notice need not be proved, the defect being apparently structural in its nature; and that the court erred in its charge at folios 160-163 in that respect and in failing to charge as requested at folio 170. (See Storms v. Lane, 223 App. Div. 79; Griffen v. Manice, 166 N.Y. 188; Marceau v. Rutland R.R. Co., 211 id. 203.) Lazansky, P.J., Tompkins and Davis, JJ., concur; Kapper and Scudder, JJ., dissent and vote to affirm.