Mann v. Schimmel ( 1934 )

Judgment reversed on the law and the facts and a new trial granted, with costs to the appellants to abide the event. In our opinion the finding of the trial justice that the flower pot was securely and firmly fastened to the cement slab upon which it rested is contrary to the evidence. We are also of the opinion that even if the flower pot was caused to fall by the act of the infant plaintiff’s sister, still the plaintiffs could recover against the defendant if defendant’s negligence in failing to obey the ordinance^* in question contributed to the injury and was a direct and proximate cause thereof. Findings of fact inconsistent herewith are reversed. Lazansky, P. J., Young, Kapper, Carswell and Tompkins, JJ.. concur. Settle order on notice.

* See New York Code of Ordinances, chap. 23, art, 18, § 250.