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ZOLTAN NEUMARK ET AL. v. CITY NEW YORK (11/07/68)

November 7, 1968

ZOLTAN NEUMARK ET AL., APPELLANTS,
v.
CITY OF NEW YORK, RESPONDENT, ET AL., DEFENDANT



Concur -- Stevens, J. P., Steuer, Capozzoli, Tilzer and McNally, JJ.

A jury found in favor of plaintiffs on the issue of liability in this case involving alleged negligence on the part of the City of New York in the maintenance of its highways. The verdict should have been set aside as being against the weight of evidence. However, it is clear that the complaint should not have been dismissed. This is not a case in which plaintiffs' "evidence was so meager that in contemplation of law it could be said to be no evidence at all". (Westbrook v. Green Bus Lines, 30 A.D.2d 959.) Since a new trial is to be held we would point out that the trial court committed error in excluding evidence of custom and usage. (Kovalsky v. City of Watervliet, 5 A.D.2d 324.)

Disposition

Judgment dismissing plaintiffs' complaint, after a jury verdict in their favor on the issue of liability, unanimously reversed on the law and a new trial ordered, with $50 costs and disbursements to abide the event.

19681107

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