Opinion
December 12, 1947.
Appeal from Appellate Division of the Supreme Court in the First Judicial Department.
The trial court improperly dismissed the complaint at the close of the plaintiff's case; the plaintiff was not guilty of contributory negligence as matter of law. The error thus committed was not cured by the subsequent proceedings in connection with the defendant's counterclaim. The determination of the Appellate Term and the judgment and the order of the Municipal Court, insofar as they dismiss the plaintiff-appellant's complaint, should be reversed and a new trial ordered thereof, with costs in all courts to the appellant to abide the event.
Peck, P.J., Dore, Cohn, Callahan and Shientag, JJ., concur.
Determination of the Appellate Term and the judgment and the order of the Municipal Court, insofar as they dismiss the plaintiff-appellant's complaint, unanimously reversed and a new trial ordered thereof, with costs in all courts to the appellant to abide the event. Settle order on notice.