
    Leah Goldberg et al., Appellants, v. P. Ballantine & Sons, Respondent.
    First Department,
    February 2, 1948.
    
      
      Jeremiah A. O’Leary of counsel (David Lieberman, attorney), for appellants.
    
      Arnold LaGuardia of counsel (Nicholas J. Ferri with him on the brief; Grant, Clark & Fox, attorneys), for respondent.
   Per Curiam.

Defendant delivered to plaintiff wife, a delicatessen store owner, several cases of beer. Her testimony is that four days later when she removed a bottle from one of the cases it exploded in her hand; that up to that time neither the case nor any of the bottles in the case had been disturbed. Plaintiff husband testified that immediately after the accident he examined the eleven remaining bottles in the case and found two broken and that about a quarter of the contents had seeped out of another bottle. Defendant’s superintendent in charge of the brewery, called as a witness by the plaintiffs, testified to the defendant’s bottling process, including the fact that the bottles were dropped into the cases, the drop being fourteen inches, and that sometimes bottles are thereby broken. No inspection of the bottles was made after the drop.

Dismissal of the complaint at the close of plaintiffs’ case was error. The evidence submitted by plaintiffs would entitle them to go to the jury. The judgment should be reversed and new trial ordered, with costs to appellants to abide the event.

Peck, P. J., G-lennon, Dobe, Van Voobhis and Shientag, JJ., concur.

Judgment unanimously reversed and a new trial ordered, with costs to the appellants to abide the event.  