SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 20, 1968
LINDA SCHNEIDER ET AL., APPELLANTS,
WILBUR ALLING, III, ET AL., RESPONDENTS
Christ, Acting P. J., Brennan, Hopkins, Munder and Martuscello, JJ., concur.
In our opinion, it was error to dismiss the complaint on the ground that the injured plaintiff, Linda Schneider, was contributorily negligent as a matter of law. Nevertheless, the dismissal in favor of defendant Marjorie Myles was proper for the reason that plaintiffs failed to make out a prima facie case as against this defendant. However, plaintiffs did make out a prima facie case as against defendant Wilbur Alling, III, who was holding the rifle when it went off and shot the injured plaintiff in the foot. Therefore, as against said defendant, a new trial is required.
Judgment of the Supreme Court, Queens County, entered August 10, 1967, modified, on the law, by striking out the second decretal paragraph and inserting in lieu thereof a provision severing the action, and granting a new trial, as against defendant Alling. As so modified, judgment affirmed, with costs as between appellants and respondent Alling to abide the event of the new trial. No questions of fact were considered.
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