SCOTT, J.:
The plaintiff seeks to recover damages for injuries resulting from a fall caused, as it is said, by a defect in the plank pavement covering an excavation in a street rendered necessary by the construction of the Rapid Transit railroad in the city of New York. The parties, by consent, left the question of the defendant's negligence and of plaintiff's contributory negligence to the court, submitting to the jury only the amount of the damages. After deliberation the court directed a verdict to be entered for the plaintiff thus necessarily holding that the defendant had been guilty of negligence. This finding, as we consider, was clearly against the evidence. ( Derby v. Degnon-McLean Contracting Co., 112 App. Div. 324; affd., 188 N.Y. 631.) It follows that the judgment and order appealed from must be reversed and the complaint dismissed, with costs in this court and the court below. Clarke, P.J., Laughlin, Dowling and Shearn, JJ., concurred. Judgment and order reversed and complaint dismissed, with costs.