Davis v. New York City Transit Authority

Judgment, dismissing the complaint in a personal injury action, unanimously reversed, on the law and on the facts, and a new trial ordered, with costs to abide the event. At the close of the plaintiff’s ease in denying the motion to dismiss the trial court said: “If the jury believes the story, they are entitled to give him a verdict.” At the close of the entire ease, after reserving decision on the motion to dismiss but before submission to the jury and in the course of defendant’s summation, the trial court granted the motion. We hold plaintiff’s proof was sufficient to make a prima facie case and despite the persuasiveness of defendant’s evidence the case was required to be submitted to the jury. (Cf. Sagorsky v. Malyon, 307 N. Y. 584, 586; 2 A D 2d 675, revd. 3 N Y 2d 907; 4 A D 2d 1016.) Concur — Rabin, J. P., Valente, McNally, Eager and Steuer, JJ.