Opinion
April 19, 1960
Judgment unanimously reversed on the law and on the facts, and a new trial ordered, with costs to the appellants. Plaintiffs established a prima facie case of negligence by proof of the defective condition of the window and of notice of that condition. Whether the negligence was a proximate cause of the accident and was reasonably foreseeable were questions of fact for the jury in view of the evidence of defendant's knowledge of the proclivities of children residing in the premises to play near the window and the ineffective repair of the window latch. Under the circumstances, it was error to dismiss the complaint, as a matter of law, at the conclusion of the testimony without permitting the jury to pass on the factual issues.
Concur — Botein, P.J., Breitel, Rabin, M.M. Frank and Valente, JJ.