Opinion
October 31, 1978
Judgment, Supreme Court, Bronx County, entered on March 11, 1977, in defendants' favor, unanimously reversed, on the law, and vacated and the matter remanded for a new trial, with $75 costs and disbursements of this appeal to abide the event. On the facts adduced at trial there was no evidence of contributory negligence and it was error to charge the jury on that subject. The infant plaintiff's presence in the garden area, near the fountain, the finial of which, it is contended, was caused to fall and strike the infant, "merely furnished the condition or occasion for the occurrence of the event rather than one of its causes" (Sheehan v City of New York, 40 N.Y.2d 496, 503; cf. Rivera v City of New York, 11 N.Y.2d 856). Since the verdict was a general one, there is no way of knowing what part the charge on contributory negligence played in the jury's verdict. Hence, the error was prejudicial and the verdict cannot stand. (See Eisenberg v Green, 33 A.D.2d 756; see, also, Stagnitti v Newberry, 1 A.D.2d 735.)
Concur — Murphy, P.J., Fein, Lane and Sullivan, JJ.