Opinion
June 12, 1967
Judgment of the Supreme Court, Queens County, dated April 5, 1966, reversed, on the law and the facts and in the interests of justice, and new trial granted, with costs to abide the event. Respondents have on this appeal disclaimed invoking the doctrine of res ipsa loquitur and have asserted, as they did on the trial, that the facts proved warranted a finding of neglect in the maintenance of the door through which the plaintiff wife was departing. An essential ingredient of such negligence is timely notice. The proof as to notice was insufficient ( Golden v. Horn Hardart Co., 244 App. Div. 92, affd. 270 N.Y. 544). There is no proof, independent of the statement of the unidentified woman to the unidentified man, whose status was never shown to be such as would bind defendant, of sufficient notice (cf. Bransfield v. Grand Union Co., 24 A.D.2d 586, affd. 17 N.Y.2d 474). In any event, we would reverse because of the prejudicial conduct of the trial court. In the interests of justice, however, a new trial should be granted. Ughetta, Acting P.J., Christ, Brennan, Hopkins and Munder, JJ., concur.