
    L. Harold Broderick, Appellant, v. City of New York and P. Tomasetti Contracting Corporation, Respondents.
   The plaintiff, while driving his automobile on a street, ran into an excavation admittedly made by the defendant contracting corporation under a contract with the city. The action is to recover damages for personal injuries and injury to property. Accepting the testimony of the plaintiff ’and his witnesses, with the favorable inferences to be drawn therefrom, it was a dark and cloudy night, he was a stranger in the locality, and there were no lights or other warnings that such an excavation existed across the street. The complaint was dismissed at the close of the plaintiff’s case on motions by defendants, made upon the ground that the plaintiff had not made a -prima facie case of negligence and was guilty of contributory negligence as a matter of law. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event, except as to that part which dismisses the plaintiff’s complaint against the city for property damage, for which no verified claim had been filed, and in that respect the judgment is affirmed. Questions of fact were presented on both issues. It was error to exclude the testimony of the witness Lenz as to his observation as to lights when he arrived on the scene within a short time after the accident, it appearing that there had been no change of conditions before his arrival. Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.  