(Supreme Court, Appellate Term.
May 7, 1909.)
Evidence (§ 594*)—Verdict— Conformity to Proof.
Where plaintiff makes out a case sufficient to warrant a refusal to dismiss the complaint, and defendant offers no evidence, plaintiff is entitled to recover some amount of damages, and a verdict for defendant is unauthorized.
[Ed. Note.—For other cases, see Evidence, Dec. Dig. § 594.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Davis Lefkowitz against the City of New York. From a judgment for defendant, plaintiff appeals.
Reversed, and new trial ordered.
Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.
Jacob W. Block, for appellant.
Francis K. Pendleton (Theodore Connoly and Loyal Leale, of counsel), for respondent.
Plaintiff was injured by being suddenly struck down by a horse and cart of the street cleaning department. Defendant offered no evidence. The jury found for defendant. Plaintiff appeals.
The trial court properly refused to dismiss the complaint. Therefore plaintiff was entitled to some amount of damages. See Meyers v. N. Y. City Ry. Co., 53 Misc. Rep. 650, 101 N. Y. Supp. 750.
Judgment and order reversed, and new trial ordered, with costs to appellant to abide the event.
116 N.Y.S. 683
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