
    Jacoby Hirsch, Respondent, v. Schwartz & Cohen, Inc., and Others, Defendants, Impleaded with Highway Improvement and Repair Company, Inc., Appellant.
   Judgment reversed on the law and the facts, and a new trial granted, with costs to appellant to abide the event. The Court of Appeals in reversing the judgment entered after a prior trial of this case (256 N. Y. 7) held that this defendant could be held hable only if the jury found that the condition of the street resulting from the building of the ramp was dangerous, and, m that event, it was under a duty to guard it, enlarge or make it safe only in the event that it had reached the place in the progress of its work or had assumed control of the location for repair.” No proof was adduced that the condition of the ramp was dangerous. To the contrary, the court charged that there was no proof that the ramp as constructed “ was not the customary ramp, or did not conform with the general method of erecting such ramps.” As to whether or not the appellant had reached the place in the progress of its work and had assumed control of the loeartion, the evidence presented a question of fact for determination by the jury. The court in its charge did not define the defendant’s liability, if any. Its refusal to charge as requested at folio 505 was error, compelling a reversal. Hagarty, Tompkins and Davis, JJ., concur; Lazansky, P. J., and Kapper, J., dissent and vote to affirm.  