Berg v. Interborough Rapid Transit Co.

Judgment affirmed, without costs. No opinion. Present — Finch, P. J., Merrell, Martin, O’Malley and Untermyer, JJ.; Finch, P. J., and Untermyer, J., dissent. Dissenting opinion by Finch, P. J.

The dismissal of the complaint as against the defendant Interborough Rapid Transit Company, pursuant to a motion made at the close of the plaintiff’s case, should be reversed and a new trial ordered. This record shows unmistakably that an issue of fact was presented as to the negligence of this defendant. The witness Prosser testified, practically without contradiction, that the work was done “ under the direction of the Interborough engineers and myself.” As the plaintiff has been allowed to recover against the Empire City Subway Company (Limited), it likewise had at least a prima facie case for submission to the jury against the codefendant Interborough Rapid Transit Company, who was the carrier. It follows that the judgment dismissing the complaint against the defendant Interborough Rapid Transit Company should be reversed and a new trial granted. Untermyer, J., concurs.