128 N.Y.S. 951 | N.Y. App. Div. | 1911
This is an appeal by the defendants from a determination of the Appellate Term affirming a judgment of the Municipal Court. The appellants owned a building at No. 134 Essex street in the city of New York, which they altered into a moving picture theater. The alterations embraced the erection in the front part of the building of a small lobby. On April. 27, 1910, a few days after the alterations had been. completed, the plaintiff, having purchased a ticket, was standing in the lobby awaiting an opportunity to. enter the theater, when the floor at one end collapsed and fell, plaintiff falling with- it and sus-, taining the injuries for which she has received damages, the amount of which is not questioned. The complaint contains two counts, one for negligence and one for breach of contract, and at the trial the plaintiff elected to stand on the latter ground. Plaintiff offered no evidence as to the cause of the accident. The defendants’ proof showed that they had employed an architect to prepare plans and specifications and superintend ’the work of alteration; that the plans and specifications were approved by the building department, and that a contractor of experience was employed to carry them out. After the alterations had been completed, and before the theater opened, the work was inspected by the architect, and by inspectors of the police, fire and building departments. From an examination made after the accident, the defendants’ witnesses were of opinion that it had occurred in consequence of the breaking of what is known as a “ bridle iron ” which held up the beams at one corner of. the lobby. Of such ‘ ‘ bridle irons ” there was one at each corner of the lobby capable of holding seven or eight tons of weight, besides a number of smaller ones. It was one of the larger irons which had broken, and the break was found to have resulted from a latent defect in the iron consisting of what is known as a “ hair flaw ’■’ inside the iron, which the witnesses testified could not be discovered either by inspection or by a hammer test. The contractor testified that the “ bridle irons ” (twenty-four in all) had been purchased from a well-known and long-established concern dealing in such goods, and both the architect and the contractor testified that they had examined and tested each bridle iron before it'was put in the work, and that
The determination of the Appellate Term and the judgment of the Municipal Court must be reversed and a new trial ordered, with costs to the appellants in this court and in the courts below to abide the event.
Ingraham, P.. J., McLaughlin, Olarke-and Dowling, JJ., concurred.
Determination and judgment reversed and new trial ordered, with costs to appellants in this court and in the courts below to abide event.