Opinion
Argued January 12, 1956
Decided February 17, 1956
Appeal from the Appellate Division of the Supreme Court in the second judicial department, CONROY, J.
Jerome Golenbock, Jacob Bromberg, Harvey B. Nachman and Donald S. Sherwood for appellants.
John A. Gleason for respondent.
Judgment affirmed, with costs; no opinion.
Concur: DESMOND, DYE, FULD, VAN VOORHIS and BURKE, JJ. FROESSEL, J., dissents and votes to reverse in the following memorandum in which CONWAY, Ch. J., concurs: As we read this record, the trial court granted the motion to dismiss the complaint at the close of plaintiffs' case on the issue of liability, and before defendant had offered any proof or rested, as a matter of law and without weighing the evidence. Giving the plaintiffs the benefit of every favorable inference that may be reasonably drawn from the evidence ( Swensson v. New York, Albany Desp. Co., 309 N.Y. 497; Betzag v. Gulf Oil Corp., 298 N.Y. 358; Faber v. City of New York, 213 N.Y. 411; Kraus v. Birnbaum, 200 N.Y. 130; 6 Carmody-Wait on New York Practice, p. 699), a jury, without more, would be warranted in finding that the facts and circumstances support the inference that defendant's employees, who admittedly were the only persons carrying food through the area where the accident occurred, created the condition complained of. In our view, it was error to dismiss the complaint at the time the motion was made. The judgment should be reversed and a new trial ordered, with costs to abide the event.