Baker v. Adamo , 236 A.D. 803 ( 1932 )

Judgment reversed on the law and the facts and a new trial granted, costs to appellant to abide the event. We are of opinion that the dismissal of the complaint by the learned trial court was not justified by the facts developed upon the trial. We are not prepared to say that the record discloses that the lifting of the section of the boiler which the infant plaintiff says fell upon him was a physical impossibility. That question could be determined only by an examination of the exact conditions existing at the time and place of the accident. An issue of fact is presented which must be determined by a jury. In view of the reversal of the judgment, the appeal from the order, based upon affidavits, denying plaintiff’s subsequent motion for a new trial is dismissed. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.