Opinion
October, 1933.
Judgment reversed on the law and a new trial granted, costs to abide the event. Although plaintiff's counsel attempted to adduce evidence under many improperly framed questions, objections were sustained to many questions which were properly framed. The plaintiff should have been permitted to adduce evidence of the facts and circumstances as they existed on the morning of, and prior to, the accident, on the stories above the seventeenth floor, as well as the facts and circumstances with reference to those floors immediately after the accident. He should have been permitted to adduce the facts that would tend to establish that the plank picked up on the street immediately after the accident was of the type and character used by one or both of the defendants in the course of their work in the stories above the seventeenth floor, and that the plank had been observed by witnesses who were familiar with the type and character of the plank used by either or both of the defendants as such plank or type of plank was described by them. The court held the plaintiff down too strictly in these respects, and his rulings on many occasions were erroneous. Typical of these were the rulings at folios 82, 86, 101, 104, 109 and 157. Lazansky, P.J., Kapper, Hagarty, Carswell and Davis, JJ., concur.