Tripi v. Stillwell

Judgment and order unanimously reversed on the law and facts and a new trial granted, with costs to appellant to abide the event. Memorandum: The nonsuit was granted after defendant had rested without offering any evidence. The plaintiff was “entitled to the benefit of every favorable inference which can reasonably be drawn” from the evidence submitted by her (Sagorsky v. Maly on, 307 N. Y. 584, 586; Michaels v. Gannett Go., 10 A D 2d 417). Applying this principle the plaintiff established a prima facie ease which required submission to the jury. Furthermore, plaintiff’s motion to reopen and present additional proof, made as it was immediately after her counsel had informed the court that he rested and before any offer of proof by defendant, should have been granted. There was no showing of any prejudice to defendant and, therefore, the denial of this motion was an improvident exercise of the court’s discretion. (Appeal from judgment of Erie Trial Term dismissing the complaint on the merits in an automobile negligence action; also appeal from order denying motion to reopen ease, etc., and for a new trial.) Present — Bastow, J. P., Goldman, Henry, Noonan and Del Vecchio, JJ.