Opinion
January 26, 1942.
In an action to recover damages for personal injuries resulting from plaintiff's fall on a defective sidewalk, in a crack in which her foot caught, throwing her, judgment in favor of defendants, entered upon the direction of the trial court, dismissing the complaint at the close of all the proofs, reversed on the law and new trial granted, with costs to appellant to abide the event. The learned trial justice erred in granting the motion to dismiss. There were issues of fact for the jury relating to the defendants' alleged liability and plaintiff's damages. Taking the evidence in its aspect most favorable to the plaintiff ( Lombardi v. New York State Railways, 224 App. Div. 438), the jury might have found that the crack in the sidewalk in which plaintiff's foot caught, causing her fall, was such as to impose liability on the defendants within the purview of the rulings in Moroney v. City of New York ( 117 App. Div. 843; affd., 190 N.Y. 560); Moshier v. City of New York ( 190 App. Div. 111, 115); Terry v. Village of Perry ( 199 N.Y. 79) and kindred cases. Appeal from order granting defendants' motion to dismiss the complaint, dismissed, without costs. Lazansky, P.J., Hagarty and Taylor, JJ., concur: Carswell and Adel, JJ., concur in the dismissal of the appeal from the order but dissent as to the reversal of the judgment and the granting of a new trial, and vote to affirm the judgment.