Opinion
October 10, 1949.
Action to recover damages for personal injuries sustained by plaintiff wife when she fell at or near the entrance to a store leased by defendant Genung's Inc. in premises owned by defendant The Altschul Foundation, in the city of White Plains; and by plaintiff husband for medical expenses and loss of services. Defendants appeal from a judgment in favor of plaintiffs entered upon the verdict of a jury. Defendant Genung's Inc. also appeals from the judgment dismissing its cross complaint against defendant The Altschul Foundation, and granting the latter defendant judgment against Genung's Inc. on its cross complaint. Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event. Plaintiffs failed to establish the manner in which the accident occurred or that it was due to negligence on the part of the defendants, and the verdict was consequently against the weight of the credible evidence. As the record indicates, however, that plaintiffs may be able to clarify their testimony and supply the deficiences in their proof, a new trial is granted. We find no error in the trial court's rulings upon the question of ultimate liability as between the defendants. Nolan, P.J., Carswell, Adel, Sneed and Wenzel, JJ., concur.