Opinion
January 8, 1941.
Present — Crosby, P.J., Cunningham, Taylor, Dowling and Harris, JJ.
Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: We think the verdict of no cause for action was clearly against the weight of the evidence. Moreover, the court erred in excluding Item 77-P of the Specifications relating to the "Protection of Traffic" under the defendant's contract. This error of itself requires a reversal of the judgment and order appealed from. ( McMahon v. Second Avenue Railroad Company, 75 N.Y. 231, 235, 239. See, also, Kinnie v. Town of Morristown, 184 App. Div. 408.) All concur, except Crosby, P.J., and Taylor, J., who dissent and vote for affirmance. (The judgment is for defendant in an action for damages for personal injuries sustained by plaintiff by reason of an automobile in which she was a passenger colliding with concrete pipes in a public highway. The order denies a motion for a new trial.)