William Langert, Appellant, v. City of New York, Respondent, 21 A.D.2d 780

Judgment unanimously reversed upon the law and upon the facts, and a new trial ordered, with costs to abide the event. It is no longer necessary or fitting to cite authority for the proposition that when an action is dismissed at the close of plaintiff’s case plaintiff is entitled to the best construction of the evidence that the testimony will warrant.

Applying that test, there was testimony that at the point where plaintiff sought to cross the roadway there were ruts of ice eight inches deep; that the city had notice of the condition by virtue of the fact that the area was flooded from a water main that had burst; and that the condition arose a sufficient length of time before the happening of the accident and it became a factual question whether the failure to correct it was negligence. These facts establish a sufficient case to go to the jury (Smith v. City of New York, 282 App. Div. 495, affd. 307 N. Y. 843).

In so holding we do not intimate that the facts as ultimately found will accord with plaintiff’s testimony, or that a verdict based on that testimony, if controverted, should survive. Concur — Breitel, J. P., Valente, Stevens, Steuer and Staley, JJ.