SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 17, 1968
EMANUEL PRIOLA, APPELLANT,
RALPH TOMASETTI, DOING BUSINESS AS RALPH TOMASETTI & COMPANY, RESPONDENT, BROOKLYN UNION GAS COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF-RESPONDENT. TULLY AND DI NAPOLI, INC., THIRD-PARTY DEFENDANT-RESPONDENT
Appeal by plaintiff from a judgment of the Supreme Court, Kings County, dated November 10, 1966, upon the trial court's dismissal of the complaint and the third-party complaint at the close of plaintiff's case upon a jury trial.
Rabin, Acting P. J., Hopkins, Benjamin and Munder, JJ., concur; Martuscello, J., not voting.
In our opinion, plaintiff's proof raised issues of fact for the jury as to the liability of either or both of the defendants. Hence, it was error to dismiss the complaint at the close of plaintiff's case.
Judgment reversed, on the law, with one bill of costs against respondents Tomasetti and the Brooklyn Union Gas Company jointly, and new trial granted. No questions of fact have been considered.
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