
    Rochelle Klass, Respondent, v. City of New York, Defendant, and Harry Furman et al., Appellants.
   In a negligence action to recover damages for personal injuries, defendants Furman appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County, entered December 18, 1970, as is in favor of plaintiff against them, upon a jury verdict. Judgment reversed insofar as appealed from, on the law and the facts and in the interests of justice; new trial granted as between plaintiff and defendants Furman, with costs to abide the event; and action severed so as to continue separately against said defendants. Plaintiff’s theory at trial was that the defendants Furman had planted a tree in front of their house allowing insufficient room for the tree’s future root structure and that the growth of the tree’s roots raised the sidewalk creating a two-inch rise, over which plaintiff stumbled. Since there was no proof whether the sidewalk was constructed before or after the tree was planted, we conclude that the jury must have been speculating when it found the Furmans liable on the theory that they planted the tree after the sidewalk was laid (cf. Friedman v. Gearrity, 33 A D 2d 1044). Plaintiff’s failure of proof may have been caused by the unexplained failure of the Parks Department and the Highway Department of the City of New York to comply with plaintiff’s subpoena duces tecum. Under the circumstances, a new trial is granted as agaihst defendants Furman in the interests of justice. Munder, Acting P. J., Martuseello, Shapiro, Christ and Benjamin, JJ., concur.  