Opinion
March 15, 1950.
Present — Taylor, P.J., McCurn, Love, Kimball and Piper, JJ.
Judgment and order insofar as they relate to the defendant Schriber reversed on the law and facts, with costs, and complaint as to said defendant dismissed, with costs, on the ground that the proofs fail to establish negligence on the part of the landlord; judgment and order insofar as they relate to defendant Pierce reversed on the facts and a new trial granted, with costs to the appellant to abide the event, on the ground that the verdict of the jury on the issues of said defendant's negligence and plaintiff's freedom from contributory negligence is against the weight of evidence. All concur as to the reversal and dismissal of the complaint as to defendant Schriber; all concur as to the reversal and new trial as to defendant Pierce, except McCurn, J., who dissents and votes for affirmance as to the defendant Pierce. (See Caveney v. McCrory Stores Corp., 219 App. Div. 853.) (The judgment appealed from is for plaintiff in a negligence action. The order denies a motion for a new trial.)