Opinion
November 21, 1949.
In an action to recover damages for personal injuries, judgment insofar as it is in favor of plaintiff and against defendant Cauldwell-Wingate Company, Inc., reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs, on the grounds: (1) That the place from which the plaintiff fell was created by his own employer and was not a place of work provided by defendant Cauldwell-Wingate Company, Inc.; (2) that the alleged conversation had between the plaintiff and the general superintendent was not an instruction to proceed without proper safeguards under an assumption of control by the appealing defendant. ( Dimare v. Driscoll Co., 241 App. Div. 736. ) If the plaintiff's complaint herein were not dismissed as against defendant Cauldwell-Wingate Company, Inc., the judgment against that defendant would have been reversed and a new trial granted on the ground that the verdict of the jury was against the weight of the evidence. The judgment, insofar as it dismisses the cross complaint against defendant Chittenden Lumber Co., Inc., is unanimously affirmed, with costs against the defendant-appellant. Carswell, Johnston, Wenzel and MacCrate, JJ., concur; Nolan, P.J., concurs as to the affirmance of the judgment dismissing the cross complaint of defendant Cauldwell-Wingate Company, Inc., against defendant Chittenden Lumber Co., Inc., but dissents as to the reversal of that part of the judgment which is in favor of the plaintiff and against defendant Cauldwell-Wingate Company, Inc., and as to the dismissal of the complaint against that defendant, and votes for affirmance of the judgment insofar as it is in favor of plaintiff and against such defendant, on the ground that, upon the record and the charge of the court, issues of fact were presented for determination by the jury; and upon the further ground that the jury's verdict is not against the weight of the evidence. [See post, p. 907.]