Schneider v. Alling

¶1Judgment of the Supreme Court, Queens County, entered August 10, 1967, modified, on the law, by striking out the second decretal paragraph and inserting in lieu thereof a provision severing the action, and granting a new trial, as against defendant Alling. As so modified, judgment affirmed, with costs as between appellants and respondent Ailing to abide the event of the new trial. No questions of fact were considered. In our opinion, it was error to dismiss the complaint on the ground that the injured plaintiff, Linda Schneider, was contribuíorily negligent as a matter of law. Nevertheless, the dismissal in favor of defendant Marjorie Myles was proper for the reason that plaintiffs *564failed to make out a prima facie case as against this defendant. However, plaintiffs did make out a prima facie case as against defendant Wilbur Ailing, III, who was holding the rifle when it went off and shot the injured plaintiff in the foot. Therefore, as against said defendant, a new trial is required. Christ, Acting P. J., Brennan, Hopkins, Munder and Martuscello, JJ., concur.