Plaintiff sustained personal injuries in a fall down a stairway which was the only access to the street from the apartment rented by him from defendant.. His complaint was dismissed, after trial, for failure of proof, diving plaintiff the benefit of every favorable inference, his testimony tended to establish that nails projected from one of the steps (in this he was corroborated by a police officer), upon which his clothing caught, causing his fall; that the nails were there as a result of defendant’s affirmative negligence in the removal of the old linoleum which allegedly covered the steps at the time when plaintiff rented and moved into the apartment; and we cannot say upon this record that he was guilty of contributory negligence as a matter of law.
Plaintiff had established a prima facie case and was entitled to go to the jury, hence it was error to dismiss his complaint. The judgments should be reversed and a new trial granted, with costs to abide the event.
Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ., concur.
Judgments reversed, etc.