Witkowski v. George W. Carter & Sons Co.
Appellate Division of the Supreme Court of the State of New York
Motion by the plaintiff, Valentine Witkowski, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint after a trial at the Erie Trial Term.
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Motion by the plaintiff, Valentine Witkowski, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint after a trial at the Erie Trial Term. The defendant, a domestic corporation, was engaged in reconstructing a building in the city of Buffalo, known as “ Music Hall,” and on the 16th day of November, 1899, the plaintiff, who was a day laborer in the employ of the defendant, was, while in the performance of his duty in the cellar of the building, injured by the falling of a brick. It appears that…
1Opinion of the Court
Adams, P. J. :
In entering upon a review of this case it is proper that due consideration should be given to two important circumstances, one of which is that the plaintiff was nonsuited at the Trial Term, and the other is that the exceptions were ordered here in the first instance. The first of these circumstances requires this court to treat all controverted facts as established in favOr of the plaintiff, who is likewise entitled to the most favorable inferences to be deduced from the evidence (Higgins v. Eagleton, 155 N. Y. 466), while the second warrants the assumption that the trial court…
2Cases cited5 opinions
- Higgins v. . EagletonNew York Court of Appeals · 1898
- McGovern v. Central Vermont R. R.New York Court of Appeals · 1890
- Felice v. New York Central & Hudson River RailroadAppellate Division of the Supreme Court of the State of New York · 1897
- Van Orden v. AckenAppellate Division of the Supreme Court of the State of New York · 1898
- Wall v. JonesNew York Supreme Court · 1892
3Cited by1 opinion
- Fagan v. Wells Bros.New York Supreme Court · 1909