Opinion
November 18, 1955.
Present — McCurn, P.J., Kimball, Wheeler and Van Duser, JJ.
Judgment reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event. Memorandum: We feel that we cannot say as a matter of law that the alleged defect or irregularity in the surface of the sidewalk was not negligence. ( Loughran v. City of New York, 298 N.Y. 320; Wilson v. Jaybro Realty Development Co., 289 N.Y. 410.) The proof in regard to this essential element of plaintiffs' case, however, is so inconclusive as to be against the weight of evidence. Further, from the record before us, we are unable to find the essential causal connection between the purported negligence and the accident which resulted in plaintiff Mary C. McCaffrey's injury. The testimony on this point, if not negligible, is so woefully weak as to give rise to grave doubts regarding the sufficiency of the evidence upon which the verdict is predicated. All concur. (Appeal from a judgment of Monroe Trial Term for plaintiffs in a negligence action.)