Nash v. Mason & Hanger Co.

Appeal from judgment dismissing the complaint at the close of plaintiff’s case in an action brought to recover damages for personal injuries sustained by plaintiff when he fell into an opening in a subway while delivering goods to defendant. On argument, judgment reversed upon the law and a new trial granted, with costs to appellant to abide the event. The trial court dismissed the complaint because it was of the opinion that plaintiff was injured in a place where he had no right to go. We are of the opinion that the record does not clearly establish that fact, and that under the circumstances shown a new trial should be had in the interest of substantial justice to give the plaintiff an opportunity to present the facts fully. Lazansky, P. J., Young, Hagarty, Carswell and Taylor, JJ., concur.