Woskowicz v. Koleff , 273 A.D. 840 ( 1948 )

Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: On this record, at the conclusion of the plaintiff’s case, the evidence warranted submitting the questions of negligence and contributory negligence to the jury. We do not intend, by this decision, to determine that upon an entire record the issues should be submitted. We conclude, merely, that plaintiff’s evidence was enough to put defendant to his proof. All concur, except McCurn and Vaughan, JJ., who dissent and vote for affirmance. (The judgment dismisses plaintiff’s complaint in an automobile negligence action. The order denies a motion for a new trial.) Present — McCurn, Larkin, Love, Vaughan and Kimball, JJ.