Opinion
May 15, 1956
Judgment dismissing the complaint at the close of plaintiff's case (confined to the "issue of liability") unanimously reversed and a new trial ordered, with costs to the appellant to abide the event. The issue of contributory negligence was a question of fact to be decided by the court after a full trial ( Foley v. State of New York, 265 App. Div. 682; Crowley v. Fifth Ave. Coach Co., 249 App. Div. 408, affd. 276 N.Y. 496). The rule that at the completion of plaintiff's case every inference favorable to the plaintiff should be drawn was not followed.
Concur — Peck, P.J., Rabin, Cox, Frank and Valente, JJ.