Opinion
October 19, 1942.
Appeal from a judgment in favor of plaintiff, entered on a verdict, after trial before court and jury, in an action to recover damages for personal injuries sustained by plaintiff from a fall on snow and ice on a city street. Judgment reversed on the facts and a new trial granted, with costs to appellant to abide the event, on the ground that the determination of the jury that defendant was negligent is against the weight of the evidence. The testimony greatly preponderated in favor of defendant's contentions that (a) plaintiff fell on a small patch of ice for the existence of which defendant should not be held liable, and (b) in any event, that patch of ice had not existed for such a length of time as to charge the city with notice. The court is of the opinion that the notice of claim is valid. Lazansky, P.J., Johnston, Adel and Close, JJ., concur; Carswell, J., concurs in the result.