Opinion
May 1, 1975
Judgment, Supreme Court, New York County, entered on December 9, 1974, dismissing the complaint in this personal injury action at the close of defendant's case, unanimously reversed, on the law, and a new trial directed, with $60 costs and disbursements to abide the event. The testimony of plaintiff and his eyewitness was sufficient to make out a prima facie case, requiring submission thereof to the jury. The trial court expressed its belief in the truthfulness of defendant's witness, rather than in the contrary testimony offered by plaintiff and indicated its view that the accident could not have happened "without him [plaintiff] being contributorily negligent". The trial court, in passing upon these and other disputed issues in the case, "usurped the jury's right to resolve the * * * question[s] of fact presented". (Hallman v City of New York, 47 A.D.2d 896).
Concur — Stevens, P.J., Markewich, Lupiano, Tilzer and Capozzoli, JJ.