Alvin Scusa, Respondent, v. Michael Bovalino, Appellant, 20 A.D.2d 755

Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The defendant is a news dealer in the area of Syracuse, New York, where the plaintiff resides. Bundles of newspapers are dropped at various points in the defendant’s territory, one of which is diagonally across the intersection from the home of the plaintiff. The bundles are bound by a single piece of wire. They are opened at the drop-off point where there is a trash receptacle. The newspapers are then distributed to subscribers by carrier boys.

While the plaintiff was mowing his lawn with a power mower it struck and cut a bundling wire and propelled a portion of it into his leg. It is for this injury that plaintiff has a judgment for damages. It is the claim of the plaintiff that the defendant was negligent because he and/or his employees (the carrier boys) after opening the bundles of newspapers threw or left on the ground or in the street the wires which bound the newspapers. The judgment should be reversed and a new trial granted.

While the proof in the present record is deficient as to whether the defendant or the carrier boys (assuming without reaching or deciding they were employees of the defendant) threw or left these wires any place on the ground at any time, we conclude that in the interest of justice there should be a new trial so that plaintiff may submit such additional proof, if any, that may be available upon this issue.

Further assuming that wires did reach the ground or street by some act of the defendant or the carrier boys, the proof does not adequately show how the wires reached the property of the plaintiff nor is it satisfactory to permit a reasonable inference as to how this occurred. (Appeal from judgment of Onondaga Trial Term for plaintiff in a negligence action.) Present — Williams, P. J., Bastow, Goldman, Henry and Noonan, JJ.