Grace v. City of New York

Cross appeals (1) by plaintiffs from a judgment and amended judgment of the Supreme Court in favor of defendants, entered May 27, 1957 and August 8, 1957, upon a dismissal of the complaint by the court at a Trial Term at the close of plaintiffs’ case, and (2) by defendants from said judgments insofar as they failed to dismiss the complaint on the merits.

Memorandum by the Court. The trial court at the end of the plaintiffs’ case dismissed the complaint, but not upon the merits, upon the sole ground that there had been a failure to show that the accident and resulting injuries were caused by a hole in the sidewalk from which protruded two metal prongs. There was evidence from the superintendent of the building that this condition had existed for 31 years. In passing upon the motion, the truth of the evidence put in by the plaintiffs is assumed and the plaintiffs must have, in addition, the advantage of every reasonable inference that can be drawn from the facts proven. In our opinion it was error in implementing this rule to hold as a matter of law that the plaintiffs had failed to make a prima facie case.

Judgments appealed from reversed and new trial ordered.