
    (April 23, 1973)
    Eagle Vending Corp., Appellant, v. Board of Education of the City of New York, Respondent.
   In an action to recover damages inter alla for the destruction of plaintiff’s vending machines, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered May 1, 1972, in favor of defendant, upon the trial court’s dismissal of the complaint at the close of plaintiff’s case, upon a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The appeal did not present questions of fact. The ground upon which the trial court dismissed the complaint was that plaintiff’s notice of claim was not given to defendant within 90 days after plaintiff’s claim arose and therefore there was not compliance with section 50-e of the General Municipal Law. It was undisputed that the notice of claim was given on July 31,1967. In our opinion, it could have been found as a fact, based on plaintiff’s evidence, that the destruction of plaintiff’s property took place after May 2, 1967, or within 90 days before the notice of claim was given. Under the circumstances, the dismissal was premature and prevented development of a full record with defendant’s proofs. Further, at the new trial the case should be submitted to the jury for a special finding as to when the demolition took place. Martuscello, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.  