
    John DeLollis, Respondent, v. Solomon Shine, Appellant.
   Judgment reversed on the facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The plaintiff had long been familiar with the defective condition of the step on which he fell sustaining the injuries for which he has recovered. The defendant and his agent knew of the defective condition of the step and on many occasions prior to the accident had promised the plaintiff to repair the step but had failed to do so. On the occasion of the accident the plaintiff stepped down onto the defective step without looking where he was placing his foot on the step. Whether plaintiff placed his foot too far forward on the step, thereby causing him to lose his balance and fall, or whether his fall was occasioned by the defect in the step at the point where he placed his foot, rested on conjecture and speculation. A verdict based upon conjecture and speculation, and this was such a verdict, cannot be sustained. We think also that the verdict was against the weight of the evidence both as to the negligence of the defendant and the plaintiff’s freedom from contributory negligence. All concur, except Harris, J., who dissents and votes for affirmance. (The judgment is for plaintiff for damages for personal injuries sustained by reason of falling on a negligently maintained stairway.) Present — Crosby, P. J., Cunningham, Dowling, Harris and McCurn, JJ.  