Roth v. Heer Contracting Co.

Judgment dismissing complaint reversed on the law and a new trial granted, costs to appellant to abide the event, on the ground that as to the proximate cause of decedent’s death there was a question of fact which should have been submitted to the jury. Lazansky, P. J., Seudder and Davis, JJ., concur; Carswell, J., with whom Kapper, J., concurs, dissents on the ground that as to the cause of death *799there is no proof which excludes causes other than drowning. An autopsy would have readily revealed the true cause of death.