
    Anna Hekand, Appellant, v. Morris Stockhammer et al., Respondents.
   In an action to recover damages for personal injuries, the appeal is from a judgment entered on a jury verdict dismissing the amended complaint and from an order denying a motion to set aside said verdict. Appellant was injured when she fell on the floor of her apartment in a multiple dwelling. Appellant testified that water had accumulated on the floor from a leak in a pipe under the washtub in the kitchen and that she was engaged in sopping up the water when she slipped and fell on the wet floor. Appellant’s amended complaint, amended bill of particulars, and testimony set the date of the accident as June 4, 1953. Appellant contends that it was error to have instructed the jury that if the accident did not take place on June 4, 1953, appellant was not entitled to a verdict. Judgment affirmed, with costs. (Sedwards v. Long Is. R. R. Co., 155 App. Div. 596.) Appeal from order dismissed, without costs. No such order is printed in the record. Beldoek, Murphy and Ughetta, JJ., concur; Nolan, P. J., and Kleinfeld, J., concur in the dismissal of the appeal from the order, but dissent and vote to reverse the judgment and to grant a new trial, with the following memorandum: In our opinion it was error to charge the jury that appellant could not recover unless she established that the accident complained of took place on June 4, 1953 and that such proof was a very vital part of her case, and to refuse to charge, as requested by appellant, that it was not vital that she remember the exact date of the accident if the proof otherwise established that it happened on June 4, 1953. Not only was appellant’s right to recover unduly limited (Hoes v. Third Ave. R. R. Co., 5 App. Div. 151), but the jury was permitted, under the charge of the court, to deny her a verdict if her memory was faulty, even though the evidence adduced might have been sufficient to establish that the accident occurred on the date alleged in the amended complaint.  