Pape v. 2632 Broadway, Inc. 279 A.D. 1003

The plaintiff made out a prima facie case of freedom from contributory negligence on his part and of negligence against the first two named defendants and it was error to nonsuit him. The evidence was sufficient to raise issues of fact concerning negligence and freedom from contributory negligence and whether or not the operator of the elevator involved in the accident was in the employ of the defendants mentioned and whether, under the circumstances presented, they are chargeable with his negligence. No case whatever was made out against the defendant Robert H. Reichel, doing business as Reichel Construction Company. In view of the fact that a new trial has been ordered, it is appropriate to point out that the learned court below properly excluded evidence concerning a conversation had with the witness Hodgkins after the accident. Settle order on notice. Present — Glennon, J. P., Cohn, Callahan, Shientag and Heffernan, JJ.