Robinson v. Atlantic & Pacific Tea Co. , 54 N.Y.S.2d 42 ( 1945 )

Hammer, J. (dissenting).

I dissent and vote for reversal and new trial.

Giving plaintiff’s evidence the benefit of the most favorable inference, it could be said either that the can which struck plaintiff was improperly placed upon defendant’s shelf by an employee or was improperly replaced by a customer who handled it. In the latter instance, either actual knowledge or constructive notice would be required to hold defendant, and none was shown. As plaintiff’s evidence is as consistent with freedom from negligence as with an inference of negligence, it must be held to establish neither.

Eder, J., votes for affirmance in opinion; McLaughlin, J., concurs in result (see Neuhoff v. Retlaw Realty Corp., 289 N. Y. 293); Hammer, J., dissents in memorandum.

Judgment affirmed.